EXECUTION COPY
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XXXXXX XXXXXXX CAPITAL I INC.
as Depositor,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer,
ARCAP SERVICING, INC.,
as Special Servicer,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee,
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Paying Agent and Certificate Registrar,
and
ABN AMRO BANK N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2003
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2003-TOP11
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................................................8
Section 1.2 Calculations Respecting Mortgage Loans.......................................................74
Section 1.3 Calculations Respecting Accrued Interest.....................................................75
Section 1.4 Interpretation...............................................................................75
Section 1.5 ARD Loans....................................................................................75
Section 1.6 Certain Matters with respect to Loan Pairs and A/B Mortgage Loans............................76
ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
Section 2.1 Conveyance of Mortgage Loans.................................................................78
Section 2.2 Acceptance by Trustee........................................................................81
Section 2.3 Sellers' Repurchase of Mortgage Loans for Material Document Defects and Material
Breaches of Representations and Warranties...................................................83
Section 2.4 Representations and Warranties...............................................................89
Section 2.5 Conveyance of Interests......................................................................90
ARTICLE III
THE CERTIFICATES
Section 3.1 The Certificates.............................................................................90
Section 3.2 Registration.................................................................................91
Section 3.3 Transfer and Exchange of Certificates........................................................91
Section 3.4 Mutilated, Destroyed, Lost or Stolen Certificates............................................97
Section 3.5 Persons Deemed Owners........................................................................97
Section 3.6 Access to List of Certificateholders' Names and Addresses....................................98
Section 3.7 Book-Entry Certificates......................................................................98
Section 3.8 Notices to Clearing Agency..................................................................101
Section 3.9 Definitive Certificates.....................................................................101
ARTICLE IV
ADVANCES
Section 4.1 P&I Advances by Master Servicer.............................................................102
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Section 4.1C P&I Advances with Respect to the Serviced Companion Loans...................................103
Section 4.2 Servicing Advances..........................................................................104
Section 4.3 Advances by the Trustee and the Fiscal Agent................................................105
Section 4.4 Evidence of Nonrecoverability...............................................................105
Section 4.5 Interest on Advances; Calculation of Outstanding Advances with Respect to a Mortgage Loan...106
Section 4.6 Reimbursement of Advances and Advance Interest..............................................107
Section 4.7 Fiscal Agent Termination Event..............................................................109
Section 4.8 Procedure Upon Termination Event............................................................110
Section 4.9 Merger or Consolidation of Fiscal Agent.....................................................110
Section 4.10 Limitation on Liability of the Fiscal Agent and Others......................................110
Section 4.11 Indemnification of Fiscal Agent.............................................................111
ARTICLE V
ADMINISTRATION OF THE TRUST
Section 5.1 Collections.................................................................................111
Section 5.2 Application of Funds in the Certificate Account and Interest Reserve Account................115
Section 5.3 Distribution Account and Reserve Account....................................................123
Section 5.4 Paying Agent Reports........................................................................124
Section 5.5 Paying Agent Tax Reports....................................................................126
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions Generally.....................................................................127
Section 6.2 REMIC I.....................................................................................127
Section 6.3 REMIC II....................................................................................128
Section 6.4 Reserved....................................................................................135
Section 6.5 REMIC III...................................................................................135
Section 6.6 Allocation of Realized Losses, Expense Losses and Shortfalls Due to Nonrecoverability.......139
Section 6.7 Net Aggregate Prepayment Interest Shortfalls................................................142
Section 6.8 Adjustment of Servicing Fees................................................................142
Section 6.9 Appraisal Reductions........................................................................142
Section 6.10 Compliance with Withholding Requirements....................................................143
Section 6.11 Prepayment Premiums.........................................................................143
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND THE
LUXEMBOURG PAYING AGENT
Section 7.1 Duties of the Trustee, the Fiscal Agent and the Paying Agent................................144
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Section 7.2 Certain Matters Affecting the Trustee, the Fiscal Agent and the Paying Agent................146
Section 7.3 The Trustee, the Fiscal Agent and the Paying Agent Not Liable
for Certificates or Interests or Mortgage Loans.............................................148
Section 7.4 The Trustee, the Fiscal Agent and the Paying Agent May Own Certificates.....................149
Section 7.5 Eligibility Requirements for the Trustee, the Fiscal Agent and the Paying Agent.............149
Section 7.6 Resignation and Removal of the Trustee, the Fiscal Agent or the Paying Agent................150
Section 7.7 Successor Trustee, Fiscal Agent or Paying Agent.............................................152
Section 7.8 Merger or Consolidation of Trustee, Fiscal Agent or Paying Agent............................153
Section 7.9 Appointment of Co-Trustee, Separate Trustee, Agents or Custodian............................153
Section 7.10 Authenticating Agents.......................................................................155
Section 7.11 Indemnification of Trustee, the Fiscal Agent and the Paying Agent...........................156
Section 7.12 Fees and Expenses of Trustee, the Fiscal Agent and the Paying Agent.........................158
Section 7.13 Collection of Moneys........................................................................158
Section 7.14 Trustee To Act; Appointment of Successor....................................................158
Section 7.15 Notification to Holders.....................................................................161
Section 7.16 Representations and Warranties of the Trustee, the Fiscal Agent and the Paying Agent........161
Section 7.17 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Trustee, the Fiscal Agent and the Paying Agent............................163
Section 7.18 Appointment of Luxembourg Paying Agent; Notification to Certificateholders..................164
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
Section 8.1 Servicing Standard; Servicing Duties........................................................165
Section 8.2 Fidelity Bond and Errors and Omissions Insurance Policy
Maintained by the Master Servicer...........................................................166
Section 8.3 Master Servicer's General Power and Duties..................................................167
Section 8.4 Primary Servicing and Sub-Servicing.........................................................173
Section 8.5 Servicers May Own Certificates..............................................................175
Section 8.6 Maintenance of Hazard Insurance, Other Insurance, Taxes and Other...........................175
Section 8.7 Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Due-On-Encumbrance Clause...................................................................178
Section 8.8 Trustee to Cooperate; Release of Trustee Mortgage Files.....................................182
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Section 8.9 Documents, Records and Funds in Possession of Master Servicer
to be Held for the Trustee for the Benefit of the Certificateholders........................183
Section 8.10 Servicing Compensation......................................................................183
Section 8.11 Master Servicer Reports; Account Statements.................................................185
Section 8.12 Annual Statement as to Compliance...........................................................187
Section 8.13 Annual Independent Public Accountants' Servicing Report.....................................187
Section 8.14 CMSA Operating Statement Analysis Reports Regarding the Mortgaged Properties................188
Section 8.15 Other Available Information and Certain Rights of the Master Servicer.......................189
Section 8.16 Rule 144A Information.......................................................................191
Section 8.17 Inspections.................................................................................191
Section 8.18 Modifications, Waivers, Amendments, Extensions and Consents.................................192
Section 8.19 Specially Serviced Mortgage Loans...........................................................195
Section 8.20 Representations, Warranties and Covenants of the Master Servicer............................196
Section 8.21 Merger or Consolidation.....................................................................197
Section 8.22 Resignation of Master Servicer..............................................................197
Section 8.23 Assignment or Delegation of Duties by Master Servicer.......................................198
Section 8.24 Limitation on Liability of the Master Servicer and Others...................................198
Section 8.25 Indemnification; Third-Party Claims.........................................................200
Section 8.26 Exchange Act Reporting......................................................................204
Section 8.27 Compliance with REMIC Provisions............................................................205
Section 8.28 Termination.................................................................................205
Section 8.29 Procedure Upon Termination..................................................................208
Section 8.30 Operating Adviser Contact with Master Servicer and Special Servicer.........................210
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS BY SPECIAL SERVICER
Section 9.1 Duties of Special Servicer..................................................................210
Section 9.2 Fidelity Bond and Errors and Omissions Insurance Policy of Special Servicer.................212
Section 9.3 Sub-Servicers...............................................................................212
Section 9.4 Special Servicer General Powers and Duties..................................................212
Section 9.5 "Due-on-Sale" Clauses; Assignment and Assumption Agreements;
Modifications of Specially Serviced Mortgage Loans; Due-On-Encumbrance Clauses..............215
Section 9.6 Release of Mortgage Files...................................................................220
Section 9.7 Documents, Records and Funds in Possession of Special Servicer
To Be Held for the Trustee..................................................................221
Section 9.8 Representations, Warranties and Covenants of the Special Servicer...........................222
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Section 9.9 Standard Hazard, Flood and Comprehensive General Liability Insurance Policies...............223
Section 9.10 Presentment of Claims and Collection of Proceeds............................................225
Section 9.11 Compensation to the Special Servicer........................................................225
Section 9.12 Realization Upon Defaulted Mortgage Loans...................................................226
Section 9.13 Foreclosure.................................................................................228
Section 9.14 Operation of REO Property...................................................................229
Section 9.15 Sale of REO Property........................................................................232
Section 9.16 Realization on Collateral Security..........................................................233
Section 9.17 Reserved....................................................................................233
Section 9.18 Annual Officer's Certificate as to Compliance...............................................233
Section 9.19 Annual Independent Accountants' Servicing Report............................................234
Section 9.20 Merger or Consolidation.....................................................................234
Section 9.21 Resignation of Special Servicer.............................................................234
Section 9.22 Assignment or Delegation of Duties by Special Servicer......................................235
Section 9.23 Limitation on Liability of the Special Servicer and Others..................................236
Section 9.24 Indemnification; Third-Party Claims.........................................................238
Section 9.25 Reserved....................................................................................240
Section 9.26 Special Servicer May Own Certificates.......................................................240
Section 9.27 Tax Reporting...............................................................................240
Section 9.28 Application of Funds Received...............................................................240
Section 9.29 Compliance with REMIC Provisions............................................................240
Section 9.30 Termination.................................................................................241
Section 9.31 Procedure Upon Termination..................................................................242
Section 9.32 Certain Special Servicer Reports............................................................244
Section 9.33 Special Servicer to Cooperate with the Master Servicer and Paying Agent.....................246
Section 9.34 Reserved....................................................................................247
Section 9.35 Reserved....................................................................................247
Section 9.36 Sale of Defaulted Mortgage Loans............................................................247
Section 9.37 Operating Adviser; Elections................................................................250
Section 9.38 Limitation on Liability of Operating Adviser................................................251
Section 9.39 Duties of Operating Adviser.................................................................251
Section 9.40 Rights of the Holder of a B Note............................................................253
ARTICLE X
PURCHASE AND TERMINATION OF THE TRUST
Section 10.1 Termination of Trust Upon Repurchase or Liquidation of All Mortgage Loans...................255
Section 10.2 Procedure Upon Termination of Trust.........................................................257
Section 10.3 Additional Trust Termination Requirements...................................................258
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ARTICLE XI
RIGHTS OF CERTIFICATEHOLDERS
Section 11.1 Limitation on Rights of Holders.............................................................259
Section 11.2 Access to List of Holders...................................................................260
Section 11.3 Acts of Holders of Certificates.............................................................260
ARTICLE XII
REMIC AND GRANTOR TRUST ADMINISTRATION
Section 12.1 REMIC Administration........................................................................261
Section 12.2 Prohibited Transactions and Activities......................................................266
Section 12.3 Modifications of Mortgage Loans.............................................................266
Section 12.4 Liability with Respect to Certain Taxes and Loss of REMIC Status............................267
Section 12.5 Class N Grantor Trust.......................................................................267
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Binding Nature of Agreement.................................................................268
Section 13.2 Entire Agreement............................................................................268
Section 13.3 Amendment...................................................................................268
Section 13.4 GOVERNING LAW...............................................................................270
Section 13.5 Notices.....................................................................................270
Section 13.6 Severability of Provisions..................................................................271
Section 13.7 Indulgences; No Waivers.....................................................................271
Section 13.8 Headings Not to Affect Interpretation.......................................................271
Section 13.9 Benefits of Agreement.......................................................................271
Section 13.10 Special Notices to the Rating Agencies......................................................272
Section 13.11 Counterparts................................................................................273
Section 13.12 Intention of Parties........................................................................274
Section 13.13 Recordation of Agreement....................................................................275
Section 13.14 Rating Agency Monitoring Fees...............................................................275
Section 13.15 Acknowledgement by Primary Servicer.........................................................275
EXHIBITS AND SCHEDULES
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EXHIBIT A-1 Form of Class A-1 Certificate
EXHIBIT A-2 Form of Class A-2 Certificate
EXHIBIT A-3 Form of Class A-3 Certificate
EXHIBIT A-4 Form of Class A-4 Certificate
EXHIBIT A-5 Form of Class B Certificate
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EXHIBIT A-6 Form of Class C Certificate
EXHIBIT A-7 Form of Class D Certificate
EXHIBIT A-8 Form of Class E Certificate
EXHIBIT A-9 Form of Class F Certificate
EXHIBIT A-10 Form of Class G Certificate
EXHIBIT A-11 Form of Class H Certificate
EXHIBIT A-12 Form of Class J Certificate
EXHIBIT A-13 Form of Class K Certificate
EXHIBIT A-14 Form of Class L Certificate
EXHIBIT A-15 Form of Class M Certificate
EXHIBIT A-16 Form of Class N Certificate
EXHIBIT A-17 Form of Class R-I Certificate
EXHIBIT A-18 Form of Class R-II Certificate
EXHIBIT A-19 Form of Class R-III Certificate
EXHIBIT A-20 Form of Class X-1 Certificate
EXHIBIT A-21 Form of Class X-2 Certificate
EXHIBIT B-1 Form of Initial Certification of Trustee (Section 2.2)
EXHIBIT B-2 Form of Final Certification of Trustee (Section 2.2)
EXHIBIT C Form of Request for Release
EXHIBIT D-1 Form of Transferor Certificate for Transfers to Definitive Privately
Offered Certificates (Section 3.3(c))
EXHIBIT D-2A Form I of Transferee Certificate for Transfers of Definitive Privately
Offered Certificates (Section 3.3(c))
EXHIBIT D-2B Form II of Transferee Certificate for Transfers of Definitive Privately
Offered Certificates (Section 3.3(c))
EXHIBIT D-3A Form I of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates (Section 3.3(c))
EXHIBIT D-3B Form II of Transferee Certificate for Transfers of Interests in Book-Entry
Privately Offered Certificates (Section 3.3(c))
EXHIBIT E-1 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT E-2 Form of Transfer Affidavit and Agreement (Section 3.3(e))
EXHIBIT F Form of Regulation S Certificate
EXHIBIT G-1 Form of Principal Primary Servicing Agreement
EXHIBIT G-2 Reserved
EXHIBIT H Form of Exchange Certification
EXHIBIT I Form of Euroclear Bank or Clearstream Bank Certificate (Section 3.7(d)
EXHIBIT J List of Loans as to Which Excess Servicing Fees Are Paid ("Excess Servicing Fee")
EXHIBIT K-1 Form of Mortgage Loan Purchase Agreement I (BSCMI)
EXHIBIT K-2 Form of Mortgage Loan Purchase Agreement II (Xxxxx Fargo)
EXHIBIT K-3 Form of Mortgage Loan Purchase Agreement III (Principal)
EXHIBIT K-4 Form of Mortgage Loan Purchase Agreement IV (MSMC)
EXHIBIT K-5 Reserved
EXHIBIT L Form of Inspection Report
EXHIBIT M Form of Monthly Certificateholders Reports (Section 5.4(a))
EXHIBIT N Form of CMSA Operating Statement Analysis Report
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EXHIBIT O Reserved
EXHIBIT P Reserved
EXHIBIT Q Reserved
EXHIBIT R Reserved
EXHIBIT S-1 Form of Power of Attorney to Master Servicer (Section 8.3(c))
EXHIBIT S-2 Form of Power of Attorney to Special Servicer (Section 9.4(a)
EXHIBIT T Form of Debt Service Coverage Ratio Procedures
EXHIBIT U Form of Assignment and Assumption Submission to Special Servicer (Section 8.7(a))
EXHIBIT V Form of Additional Lien, Monetary Encumbrance and Mezzanine Financing Submission
Package to the Special Servicer (Section 8.7(e))
EXHIBIT W Restricted Servicer Reports
EXHIBIT X Unrestricted Servicer Reports
EXHIBIT Y Investor Certificate (Section 5.4(a))
EXHIBIT Z Form of Notice and Certification Regarding Defeasance of Mortgage Loans
EXHIBIT AA Form of Xxxxx Fargo primary servicing agreement (Section 8.29(b))
EXHIBIT BB Controlling Class Certificateholder's Reports Checklist
EXHIBIT CC Form of Performance Certification (Section 8.26 (b))
SCHEDULE I BSCMI Loan Schedule
SCHEDULE II Xxxxx Fargo Loan Schedule
SCHEDULE III Principal Loan Schedule
SCHEDULE IV MSMC Loan Schedule
SCHEDULE V Reserved
SCHEDULE VI List of Escrow Accounts Not Currently Eligible Accounts (Section 8.3(e))
SCHEDULE VII Certain Escrow Accounts for Which a Report Under Section 5.1(g) is Required
SCHEDULE VIII List of Mortgagors that are Third-Party Beneficiaries Under Section 2.3(a)
SCHEDULE IX -
SCHEDULE XV Rates Used in Determination of Class X Pass-Through Rates ("Class X-1 Strip Rate"
and "Class X-2 Strip Rate")
SCHEDULE XVI Mortgage Loans Secured by Mortgaged Properties Covered by an Environmental Insurance Policy
SCHEDULE XVII List of Mortgage Loans that have Scheduled Payments after the end of a Collection Period
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THIS POOLING AND SERVICING AGREEMENT is dated as of August 1,
2003 (this "Agreement") between XXXXXX XXXXXXX CAPITAL I INC., formerly known as
Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc., a Delaware corporation, as depositor
(the "Depositor"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master servicer
(the "Master Servicer"), ARCAP SERVICING, INC., as special servicer (the
"Special Servicer"), LASALLE BANK NATIONAL ASSOCIATION, as trustee of the Trust
(the "Trustee"), ABN AMRO BANK N.V., only in its capacity as a fiscal agent
pursuant to Article IV hereof (the "Fiscal Agent") and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, only in its capacity as paying agent (the
"Paying Agent") and certificate registrar.
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Mortgage
Loans from Principal Commercial Funding, LLC, as seller ("Principal"), Xxxxx
Fargo Bank, National Association, as seller ("Xxxxx Fargo"), Bear Xxxxxxx
Commercial Mortgage, Inc., as seller ("BSCMI") and Xxxxxx Xxxxxxx Mortgage
Capital Inc., as seller ("MSMC"), and will be the owner of the Mortgage Loans
and the other property being conveyed by it to the Trustee for inclusion in the
Trust which is hereby created. On the Closing Date, the Depositor will acquire
(i) the REMIC I Regular Interests and the Class R-I Certificate as consideration
for its transfer to the Trust of the Mortgage Loans; (ii) the REMIC II Regular
Interests and the Class R-II Certificates as consideration for its transfer of
the REMIC I Regular Interests to the Trust; and (iii) the REMIC III Certificates
(other than the portion of the Class N Certificates representing Excess
Interest) as consideration for its transfer of the REMIC II Regular Interests to
the Trust and the portion of the Class N Certificates representing Excess
Interest as consideration for its transfer to the Trust of the Excess Interest.
The Depositor has duly authorized the execution and delivery of this Agreement
to provide for the foregoing and the issuance of (A) the REMIC I Regular
Interests and the Class R-I Certificates representing in the aggregate the
entire beneficial ownership of REMIC I, (B) the REMIC II Regular Interests and
the Class R-II Certificates representing in the aggregate the entire beneficial
ownership of REMIC II and (C) the REMIC III Certificates representing in the
aggregate the entire beneficial ownership of REMIC III and, in the case of the
Class N Certificates, the Class N Grantor Trust. All covenants and agreements
made by the Depositor and the Trustee herein with respect to the Mortgage Loans
and the other property constituting the Trust are for the benefit of the Holders
of the REMIC I Regular Interests, the REMIC II Regular Interests, the Residual
Certificates, the REMIC Regular Certificates and the Class N Certificates to the
extent of their interest in the Excess Interest. The parties hereto are entering
into this Agreement, and the Trustee is accepting the trusts created hereby, for
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
The Class A, Class B, Class C and Class D Certificates will be
offered for sale pursuant to the prospectus (the "Prospectus") dated May 19,
2003, as supplemented by the preliminary prospectus supplement dated July 28,
2003 (together with the Prospectus, the "Preliminary Prospectus Supplement"),
and as further supplemented by the final prospectus supplement dated August 6,
2003 (together with the Prospectus, the "Final Prospectus Supplement"), and the
Class X-1, Class X-2, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class R-I, Class R-II and Class R-III Certificates
will be offered for sale pursuant to a Private Placement Memorandum dated August
6, 2003.
The following sets forth the Class designation, Pass-Through
Rate, initial Aggregate Certificate Balance (or initial Notional Amount) and
Final Scheduled Distribution Date for each Class of REMIC I Regular Interests
and the Class R-I Certificates comprising the interests in REMIC I, each Class
of REMIC II Regular Interests and the Class R-II Certificates comprising the
interests in REMIC II and each Class of REMIC III Certificates comprising the
interests in REMIC III created hereunder:
REMIC I
Each REMIC I Regular Interest (a "Corresponding REMIC I
Regular Interest") will relate to a specific Mortgage Loan. Each Corresponding
REMIC I Regular Interest will have a pass-through rate equal to the REMIC I Net
Mortgage Rate of the related Mortgage Loan, an initial principal amount (the
initial "Certificate Balance") equal to the Scheduled Principal Balance as of
the Cut-Off Date (as herein defined) of the Mortgage Loan to which the
Corresponding REMIC I Regular Interest relates, and a latest possible maturity
date set to the Maturity Date (as defined herein) of the Mortgage Loan to which
the Corresponding REMIC I Regular Interest relates. The Class R-I Certificate
will be designated as the sole Class of residual interests in REMIC I and will
have no Certificate Balance and no Pass-Through Rate, but will be entitled to
receive the proceeds of any assets remaining in REMIC I after all Classes of
REMIC I Regular Interests have been paid in full.
REMIC II
The REMIC II Regular Interests have the pass-through rates and
Certificate Balances set forth in the definition thereof. The Class R-II
Certificates will be designated as the sole Class of residual interests in REMIC
II and will have no Certificate Balance and no Pass-Through Rate, but will be
entitled to receive the proceeds of any assets remaining in REMIC II after all
Classes of REMIC II Regular Interests have been paid in full.
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REMIC III
Initial Aggregate
REMIC III Certificate
Regular Initial Principal Balance
Interest Pass-Through or Notional Final Scheduled
Designation Rate(a) Amount Distribution Date(b)
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Class A-1 3.26% $150,000,000 April 13, 2008
Class A-2 4.34% $175,000,000 June 13, 2010
Class A-3 4.85% $165,114,000 December 13, 2012
Class A-4 5.15% $561,379,000 July 13, 2013
Class X-1(c) 0.17% $1,194,879,395 April 13, 2020
Class X-2(d) 0.68% $1,099,299,000 August 13, 2011
Class B 5.33% $31,366,000 April 13, 2014
Class C 5.59% $32,859,000 June 13, 2016
Class D 5.59% $13,443,000 June 13, 2016
Class E 5.59% $14,936,000 June 13, 2016
Class F 5.59% $7,468,000 June 13, 2016
Class G 5.59% $7,468,000 November 13, 2016
Class H 5.32% $11,948,000 May 13, 2018
Class J 5.32% $2,988,000 June 13, 2018
Class K 5.32% $2,987,000 September 13, 2018
Class L 5.32% $2,987,000 September 13, 2019
Class M 5.32% $2,987,000 June 13, 2020
Class N (e) 5.32% $11,949,395 June 13, 2023
Class R-III(f) N/A N/A N/A
(a) On each Distribution Date after the initial Distribution Date, the
Pass-Through Rate for each Class of Certificates will be determined as
described herein under the definition of "Pass-Through Rate." Other than
with respect to Class A-1, Class A-2, Class A-3 and Class A-4, the initial
Pass-Through Rates shown above are approximate.
(b) The Final Scheduled Distribution Date for each Class of Certificates
assigned a rating is the Distribution Date on which such Class is expected
to be paid in full, assuming that timely payments (and no prepayments) will
be made on the Mortgage Loans in accordance with their terms (except that
each ARD Loan will be prepaid in full on its Anticipated Repayment Date).
(c) Each Class X-1 Certificate represents ownership of multiple "regular
interests" in REMIC III. The Class X-1 Certificates are comprised of the
following regular interests:
(1) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-1A Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the Pass-Through Rate of the Class A-1
Certificates;
(2) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-1B Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule IX for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-1 Certificates;
(3) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-1C Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule X for such Distribution Date and (ii) the Pass-Through Rate of the
Class A-1 Certificates;
(4) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-2A Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule X for such Distribution Date and (ii) the Pass-Through Rate of the
Class A-2 Certificates;
(5) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-2B Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
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such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XI for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-2 Certificates;
(6) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-2C Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XII for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-2 Certificates;
(7) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-3A Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XII for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-3 Certificates;
(8) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-3B Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XIII for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-3 Certificates;
(9) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-4A Component and (B) one twelfth of the
excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate on
such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XIII for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-4 Certificates;
(10) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-4B Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XIV for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-4 Certificates;
(11) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-4C Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XV for such Distribution Date and (ii) the Pass-Through Rate of
the Class A-4 Certificates;
(12) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B-3 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XV for such Distribution Date and (ii) the Pass-Through Rate of
the Class B Certificates;
(13) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B-2 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XIV for such Distribution Date and (ii) the Pass-Through Rate of
the Class B Certificates;
(14) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B-1 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XIII for such Distribution Date and (ii) the Pass-Through Rate of
the Class B Certificates;
(15) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C-3 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XIII for such Distribution Date and (ii) the Pass-Through Rate of
the Class C Certificates;
(16) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C-2 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XII for such Distribution Date and (ii) the Pass-Through Rate of
the Class C Certificates;
(17) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C-1 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XI for such Distribution Date and (ii) the Pass-Through Rate of
the Class C Certificates;
(18) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class D-2 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule XI for such Distribution Date and (ii) the Pass-Through Rate of
the Class D Certificates;
(19) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class D-1 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule X for such Distribution Date and (ii) the Pass-Through Rate of the
Class D Certificates;
(20) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class E Certificate and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule X for such Distribution Date and (ii) the Pass-Through Rate of the
Class E Certificates;
(21) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class F-2 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on
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such Distribution Date over (y) the greater of (i) the rate shown on
Schedule X for such Distribution Date and (ii) the Pass-Through Rate of the
Class F Certificates;
(22) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class F-1 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule IX for such Distribution Date and (ii) the Pass-Through Rate of
the Class F Certificates;
(23) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class G Certificate and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule IX for such Distribution Date and (ii) the Pass-Through Rate of
the Class G Certificates;
(24) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class H Certificate and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule IX for such Distribution Date and (ii) the Pass-Through Rate of
the Class H Certificates;
(25) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class J-2 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the greater of (i) the rate shown on
Schedule IX for such Distribution Date and (ii) the Pass-Through Rate of
the Class J Certificates;
(26) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class J-1 Component and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the Pass-Through Rate of the Class J
Certificates;
(27) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class K Certificates and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the Pass-Through Rate of the Class K
Certificates;
(28) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class L Certificates and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the Pass-Through Rate of the Class L
Certificates;
(29) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class M Certificates and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the Pass-Through Rate of the Class M
Certificates; and
(30) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class N Certificates and (B) one twelfth of
the excess (if any) of (x) the Weighted Average REMIC I Net Mortgage Rate
on such Distribution Date over (y) the Pass-Through Rate of the Class N
Certificates.
(d) Each Class X-2 Certificate represents ownership of multiple "regular
interests" in REMIC III. The Class X-2 Certificates are comprised of the
following regular interests:
(1) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-1B Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule IX for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-1 Certificates;
(2) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-1C Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule X for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-1 Certificates;
(3) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-2A Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule X for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-2 Certificates;
(4) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-2B Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule XI for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-2 Certificates;
(5) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-2C Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule XII for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-2 Certificates;
(6) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-3A Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule XII for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-3 Certificates
(7) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-3B Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule XIII
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class A-3 Certificates;
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(8) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-4A Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule XIII
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class A-4 Certificates;
(9) the right to receive, on each Distribution Date, the product of (A) the
Certificate Balance of the Class A-4B Component and (B) one twelfth of the
excess (if any) of (i) the lesser of (x) the rate shown on Schedule XIV for
such Distribution Date and (y) the Weighted Average REMIC I Net Mortgage
Rate on such Distribution Date, over (ii) the Pass-Through Rate of the
Class A-4 Certificates;
(10) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class A-4C Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule XV
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class A-4 Certificates;
(11) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B-3 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule XV
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class B Certificates;
(12) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B-2 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule XIV
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class B Certificates;
(13) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class B-1 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule
XIII for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class B Certificates;
(14) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C-3 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule
XIII for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class C Certificates;
(15) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C-2 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule XII
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class C Certificates;
(16) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class C-1 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule XI
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class C Certificates;
(17) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class D-2 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule XI
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class D Certificates;
(18) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class D-1 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule X
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class D Certificates;
(19) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class E Certificates and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule X
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class E Certificates;
(20) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class F-2 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule X
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class F Certificates;
(21) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class F-1 Component and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule IX
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class F Certificates;
(22) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class G Certificates and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule IX
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class G Certificates;
(23) the right to receive, on each Distribution Date, the product of (A)
the Certificate Balance of the Class H Certificate and (B) one twelfth of
the excess (if any) of (i) the lesser of (x) the rate shown on Schedule IX
for such Distribution Date and (y) the Weighted Average REMIC I Net
Mortgage Rate on such Distribution Date, over (ii) the Pass-Through Rate of
the Class H Certificates; and
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(24) the right to receive, on each Distribution Date, the product of
(A) the Certificate Balance of the Class J-2 Component and (B) one
twelfth of the excess (if any) of (i) the lesser of (x) the rate shown
on Schedule IX for such Distribution Date and (y) the Weighted Average
REMIC I Net Mortgage Rate on such Distribution Date, over (ii) the
Pass-Through Rate of the Class J Certificates.
After the Distribution Date in August 2005, payments made in respect of the
Class A-1B Component, Class F-1 Component, Class G Certificates, Class H
Certificates and Class J-2 Component shall not be included in the
calculation of the amount paid in respect of the Class X-2 Certificates.
After the Distribution Date in August 2006, payments made in respect of the
Class A-1C Component, Class A-2A Component, Class D-1 Component, Class E
Certificates and Class F-2 Component shall not be included in the
calculation of the amount paid in respect of the Class X-2 Certificates.
After the Distribution Date in August 2007, payments made in respect of the
Class A-2B Component, Class C-1 Component and Class D-2 Component shall not
be included in the calculation of the amount paid in respect of the Class
X-2 Certificates. After the Distribution Date in August 2008, payments made
in respect of the Class A-2C Component, Class A-3A Component and Class C-2
Component shall not be included in the calculation of the amount paid in
respect of the Class X-2 Certificates. After the Distribution Date in
August 2009, payments made in respect of the Class A-3B Component, Class
A-4A Component, Class B-1 Component and Class C-3 Component shall not be
included in the calculation of the amount paid in respect of the Class X-2
Certificates. After the Distribution Date in August 2010, payments made in
respect of the Class A-4B Component and Class B-2 Component shall not be
included in the calculation of the amount paid in respect of the Class X-2
Certificates.
(e) Each Class N Certificate represents ownership of one REMIC III Regular
Interest (entitled to the principal and interest set forth above). In
addition, each Class N Certificate will be entitled to Excess Interest
(which will not be a part of any REMIC Pool). The parties intend that (i)
the portion of the Trust representing the Excess Interest and the Excess
Interest Sub-account shall be treated as a grantor trust under subpart E of
Part 1 of subchapter J of Chapter 1 of Subtitle A of the Code and (ii) the
Class N Certificates (other than the portion thereof consisting of a REMIC
III Regular Interest) shall represent undivided beneficial interests in the
portion of the Trust consisting of the entitlement to receive Excess
Interest (the "Class N Grantor Trust").
(f) The Class R-III Certificates will be entitled to receive the proceeds of
any remaining assets in REMIC III after the principal amounts of all
Classes of Certificates have been reduced to zero and any Realized Losses
previously allocated thereto (and any interest thereon) have been
reimbursed.
As of the Cut-Off Date, the Mortgage Loans had an Aggregate
Principal Balance of $1,194,879,395.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the first paragraph of Section 12.1(a) hereof (including the
Mortgage Loans) to be treated for federal income tax purposes as a real estate
mortgage investment conduit ("REMIC I"). The REMIC I Regular Interests will be
designated as the "regular interests" in REMIC I and the Class R-I Certificates
will be designated as the sole Class of "residual interests" in REMIC I.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the second paragraph of Section 12.1(a) hereof consisting of
the REMIC I Regular Interests to be treated for federal income tax purposes as a
real estate mortgage investment conduit ("REMIC II"). The REMIC II Regular
Interests will be designated as the "regular interests" in REMIC II and the
Class R-II Certificates will be designated as the sole Class of "residual
interests" in REMIC II for purposes of the REMIC Provisions.
As provided herein, with respect to the Trust, the Paying
Agent on behalf of the Trustee will make an election for the segregated pool of
assets described in the third paragraph of Section 12.1(a) hereof consisting of
the REMIC II Regular Interests to be treated for federal income tax purposes as
a real estate mortgage investment conduit ("REMIC III"). The REMIC III Regular
Interests (and, in the case of the Class N Certificates, the Class N REMIC
Interest represented by the Class N Certificates) will be designated as the
"regular interests" in REMIC III and the Class R-III Certificates (together with
the REMIC Regular Certificates, the "REMIC
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III Certificates") will be designated as the sole Class of "residual interests"
in REMIC III for purposes of the REMIC Provisions.
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. Whenever used in this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"A NOTE" means, with respect to any A/B Mortgage Loan, the
mortgage note that is senior in right of payment to the related B Note to the
extent set forth in the related Intercreditor Agreement.
"A-1 NOTE" means, with respect to any A/B Mortgage Loan or
Loan Pair, as applicable, the Mortgage Note included in the Trust, which, in the
case of an A/B Mortgage Loan, is senior in right of payment to the related B
Note to the extent set forth in the related Intercreditor Agreement, and which,
in the case of a Loan Pair, is pari passu in right of payment to the related A-2
Note to the extent set forth in the related Loan Pair Intercreditor Agreement.
"A-2 NOTE" means, with respect to any A/B Mortgage Loan or
Loan Pair, as applicable, the A-2 component of such Mortgage Loan, if any, which
is not included in the Trust and which, in the case of an A/B Mortgage Loan, is
senior in right of payment to the related B Note to the extent set forth in the
related Intercreditor Agreement, and which, in the case of a Loan Pair, is pari
passu in right of payment to the related A-1 Note to the extent set forth in the
related Loan Pair Intercreditor Agreement.
"A/B LOAN CUSTODIAL ACCOUNT" means each of the custodial
sub-account(s) of the Certificate Account (but which are not included in the
Trust) created and maintained by the Master Servicer pursuant to Section 5.1(c)
on behalf of the holder of a related B Note. Any such sub-account(s) shall be
maintained as a sub-account of an Eligible Account.
"A/B MORTGAGE LOAN" means any mortgage loan that is divided
into a senior mortgage note and a subordinated mortgage note, which senior
mortgage note is included in the Trust. References herein to an A/B Mortgage
Loan shall be construed to refer to the aggregate indebtedness under the related
A Note and the related B Note. Notwithstanding the first sentence of this
definition, there are no A/B Mortgage Loans in the Trust. The Xxxx Xxxxxxx Tower
Companion Loan included in the LB-UBS Series 2003-C5 Trust is part of the "Xxxx
Xxxxxxx Tower Loan Group," as defined under the LB-UBS Series 2003-C5 Pooling
and Servicing Agreement, and the Xxxx Xxxxxxx Tower Loan Group includes two
subordinated notes.
"ACCOUNTANT" means a person engaged in the practice of
accounting who is Independent.
"ACCRUED CERTIFICATE INTEREST" means with respect to each
Distribution Date and any Class of Interests or Principal Balance Certificates,
other than the Class X Certificates, the Class R-I Certificates, the Class R-II
Certificates and the Class R-III Certificates, interest accrued during the
Interest Accrual Period relating to such Distribution Date on the Aggregate
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Certificate Balance of such Class or Interest as of the close of business on the
immediately preceding Distribution Date at the respective rates per annum set
forth in the definition of the applicable Pass-Through Rate for each such Class.
Accrued Certificate Interest on the Class X-1 Certificates for each Distribution
Date will equal the Class X-1 Interest Amount. Accrued Certificate Interest on
the Class X-2 Certificates for each Distribution Date will equal the Class X-2
Interest Amount.
"ACQUISITION DATE" means the date upon which, under the Code
(and in particular the REMIC Provisions and Section 856(e) of the Code), the
Trust or a REMIC Pool is deemed to have acquired a Mortgaged Property (or an
interest therein, in the case of the Mortgaged Properties securing any A/B
Mortgage Loan, any Xxxx Xxxxxxx Tower Companion Loan, the Xxxx Xxxxxxx Tower
Pari Passu Loan and the Loan Pair).
"ADDITIONAL REVIEW PERIOD" has the meaning set forth in
Section 9.4(d).
"ADDITIONAL TRUST EXPENSE" means any of the following items:
(i) Special Servicing Fees, Work-Out Fees and Liquidation Fees (to the extent
not collected from the related Mortgagor), (ii) Advance Interest that cannot be
paid in accordance with Section 4.6(c); (iii) amounts paid to indemnify the
Master Servicer, the Special Servicer, the LB-UBS Series 2003-C5 Master
Servicer, the LB-UBS Series 2003-C5 Special Servicer, any Primary Servicer, the
Trustee, the Paying Agent, the Fiscal Agent (or any other Person) pursuant to
the terms of this Agreement; (iv) to the extent not otherwise paid, any federal,
state, or local taxes imposed on the Trust or its assets and paid from amounts
on deposit in the Certificate Account or Distribution Account, (v) the amount of
any Advance that is not recovered from the proceeds of a Mortgage Loan (other
than the RSA Pari Passu Loan) or Loan Pair upon a Final Recovery Determination
and (vi) to the extent not included in the calculation of a Realized Loss and
not covered by indemnification by one of the parties hereto or otherwise, any
other unanticipated cost, liability, or expense (or portion thereof) of the
Trust (including costs of collecting such amounts or other Additional Trust
Expenses) which the Trust has not recovered, and in the judgment of the Master
Servicer (or Special Servicer, in the case of a Specially Serviced Mortgage
Loan) will not, recover from the related Mortgagor or Mortgaged Property or
otherwise, including a Modification Loss described in clause (ii) of the
definition thereof; provided, however, that, in the case of an A/B Mortgage
Loan, "Additional Trust Expense" shall not include any of the foregoing amounts
that have been recovered from the related Mortgagor or Mortgaged Property as a
result of the subordination of the related B Note. Notwithstanding anything to
the contrary, "Additional Trust Expenses" shall not include allocable overhead
of the Master Servicer, the Special Servicer, the LB-UBS Series 2003-C5 Master
Servicer, the LB-UBS Series 2003-C5 Special Servicer, the Trustee, the Paying
Agent, the Certificate Registrar or the Fiscal Agent, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses, and similar internal costs and expenses.
"ADMINISTRATIVE COST RATE" means the sum of the Master
Servicing Fee Rate, the Primary Servicing Fee Rate, the Excess Servicing Fee
Rate, the Trustee Fee Rate and in the case of the Xxxx Xxxxxxx Tower Pari Passu
Loan, the Pari Passu Loan Servicing Fee Rate.
"ADVANCE" means either a P&I Advance or a Servicing Advance.
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"ADVANCE INTEREST" means interest payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent on outstanding
Advances pursuant to Section 4.5 of this Agreement and any interest payable to
the LB-UBS Series 2003-C5 Master Servicer, the LB-UBS Series 2003-C5 Trustee or
the LB-UBS Series 2003-C5 Fiscal Agent with respect to Pari Passu Loan
Nonrecoverable Advances pursuant to Section 4.4(b) hereof.
"ADVANCE RATE" means a per annum rate equal to the Prime Rate
as published in the "Money Rates" section of The Wall Street Journal from time
to time or such other publication as determined by the Trustee in its reasonable
discretion.
"ADVANCE REIMBURSEMENT AMOUNT" shall have the meaning set
forth in Section 5.2(a) hereof.
"ADVANCE REPORT DATE" means the second Business Day prior to
each Distribution Date.
"ADVERSE REMIC EVENT" means any action that, under the REMIC
Provisions, if taken or not taken, as the case may be, would either (i) endanger
the status of any REMIC as a REMIC or (ii) subject to Section 9.14(e), result in
the imposition of a tax upon the income of any REMIC or any of their respective
assets or transactions, including (without limitation) the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax on
prohibited contributions set forth in Section 860G(d) of the Code.
"AFFILIATE" means, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"AGGREGATE CERTIFICATE BALANCE" means the aggregate of the
Certificate Balances of the Principal Balance Certificates, the REMIC I Regular
Interests or the REMIC II Regular Interests, as the case may be, at any date of
determination. With respect to a Class of Principal Balance Certificates, REMIC
I Regular Interests or REMIC II Regular Interests, Aggregate Certificate Balance
shall mean the aggregate of the Certificate Balances of all Certificates or
Interests, as the case may be, of that Class at any date of determination.
"AGGREGATE PRINCIPAL BALANCE" means, at the time of any
determination and as the context may require, the aggregate of the Scheduled
Principal Balances for all Mortgage Loans.
"AGREEMENT" means this Pooling and Servicing Agreement and all
amendments and supplements hereto.
"ANTICIPATED REPAYMENT DATE" means, with respect to the ARD
Loans, the anticipated maturity date set forth in the related Mortgage Note.
"APPRAISAL" means an appraisal by an Independent licensed MAI
appraiser having at least five years experience in appraising property of the
same type as, and in the same
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geographic area as, the Mortgaged Property being appraised, which appraisal
complies with the Uniform Standards of Professional Appraisal Practices and
states the "market value" of the subject property as defined in 12 C.F.R. ss.
225.62.
"APPRAISAL EVENT" means, with respect to any Mortgage Loan or
Loan Pair, not later than the earliest of (i) the date 120 days after the
occurrence of any delinquency in payment with respect to such Mortgage Loan or
Loan Pair if such delinquency remains uncured, (ii) the date 30 days after
receipt of notice that the related Mortgagor has filed a bankruptcy petition or
the related Mortgagor has become the subject of involuntary bankruptcy
proceedings or the related Mortgagor has consented to the filing of a bankruptcy
proceeding against it or a receiver is appointed in respect of the related
Mortgaged Property, provided such petition or appointment is still in effect,
(iii) the date that is 30 days following the date the related Mortgaged Property
becomes an REO Property and (iv) the effective date of any modification to a
Money Term of a Mortgage Loan or Loan Pair, other than an extension of the date
that a Balloon Payment is due for a period of less than six months from the
original due date of such Balloon Payment.
"APPRAISAL REDUCTION" means, with respect to any Required
Appraisal Loan with respect to which an Appraisal or internal valuation is
performed pursuant to Section 6.9, an amount equal to the excess of (A) the sum,
as of the first Determination Date that is at least 15 days after the date on
which the Appraisal or internal valuation is obtained or performed, of (i) the
Scheduled Principal Balance of such Mortgage Loan or Loan Pair (or, in the case
of an REO Property, the related REO Mortgage Loan) less the principal amount of
any guaranty or surety bond with a rating of at least "BBB-" (or its equivalent)
by a nationally recognized statistical rating organization and the undrawn
principal amount of any letter of credit or debt service reserve, if applicable,
that is then securing such Mortgage Loan or Loan Pair, (ii) to the extent not
previously advanced by the Master Servicer, the Trustee or the Fiscal Agent, all
accrued and unpaid interest on such Mortgage Loan or Loan Pair at a per annum
rate equal to the Mortgage Rate, (iii) all unreimbursed Advances and interest on
Advances at the Advance Rate with respect to such Mortgage Loan or Loan Pair,
and (iv) to the extent funds on deposit in any applicable Escrow Accounts are
not sufficient therefor, and to the extent not previously advanced by the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, all currently
due and unpaid real estate taxes and assessments, insurance premiums and, if
applicable, ground rents and other amounts which were required to be deposited
in any Escrow Account (but were not deposited) in respect of such Mortgaged
Property or REO Property, as the case may be, over (B) 90% of the Appraised
Value (net of any prior mortgage liens) of such Mortgaged Property or REO
Property as determined by such Appraisal or internal valuation, as the case may
be, plus the full amount of any escrows held by or on behalf of the Trustee as
security for the Mortgage Loan or Loan Pair (less the estimated amount of the
obligations anticipated to be payable in the next twelve months to which such
escrows relate). Each Appraisal or internal valuation for a Required Appraisal
Loan shall be updated annually for so long as an Appraisal Reduction exists. The
Appraisal Reduction for each Required Appraisal Loan will be recalculated based
on subsequent Appraisals, internal valuations or updates. Any Appraisal
Reduction for any Mortgage Loan shall be reduced to reflect any Realized
Principal Losses on the Required Appraisal Loan. Each Appraisal Reduction will
be reduced to zero as of the date the related Mortgage Loan or Loan Pair is
brought current under the then current terms of the Mortgage Loan or Loan Pair
for at least three consecutive months, and no Appraisal Reduction will exist as
to any Mortgage Loan or Loan Pair after it has been paid in full, liquidated,
repurchased or otherwise disposed of. Any Appraisal Reduction in respect of the
Xxxx Xxxxxxx Xxxxx Xxxx
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Xxxxx Loan shall be calculated in accordance with the LB-UBS Series 2003-C5
Pooling and Servicing Agreement based upon the applicable allocation of the
items set forth in clauses (A) and (B) above between the Xxxx Xxxxxxx Tower Pari
Passu Loan and the Xxxx Xxxxxxx Tower Companion Loans and all other related pari
passu loans. Any Appraisal Reduction in respect of the Loan Pair shall be
allocated, as between the RSA Pari Passu Loan and the RSA Companion Loan, pro
rata according to their respective Principal Balances.
"APPRAISED VALUE" means, (i) with respect to any Mortgaged
Property (other than the Mortgaged Property relating to the Xxxx Xxxxxxx Tower
Pari Passu Loan), the appraised value thereof determined by an Appraisal of the
Mortgaged Property securing such Mortgage Loan made by an Independent appraiser
selected by the Master Servicer or the Special Servicer, as applicable or, in
the case of an internal valuation performed by the Special Servicer pursuant to
Section 6.9, the value of the Mortgaged Property determined by such internal
valuation and (ii) with respect to the Mortgaged Property relating to the Xxxx
Xxxxxxx Tower Pari Passu Loan, the portion of the appraised value allocable
thereto.
"ARD LOAN" means any Mortgage Loan designated as such on the
Mortgage Loan Schedule.
"ASSIGNMENT OF LEASES" means, with respect to any Mortgage
Loan, any assignment of leases, rents and profits or equivalent instrument,
whether contained in the related Mortgage or executed separately, assigning to
the holder or holders of such Mortgage all of the related Mortgagor's interest
in the leases, rents and profits derived from the ownership, operation, leasing
or disposition of all or a portion of the related Mortgaged Property as security
for repayment of such Mortgage Loan.
"ASSIGNMENT OF MORTGAGE" means an assignment of the Mortgage,
notice of transfer or equivalent instrument, in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the transfer of the Mortgage to the Trustee, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by Mortgaged
Properties located in the same jurisdiction, if permitted by law.
"ASSUMED SCHEDULED PAYMENT" means: (i) with respect to any
Balloon Mortgage Loan or any B Note for its Maturity Date (provided that such
Mortgage Loan or B Note has not been paid in full, and no Final Recovery
Determination or other sale or liquidation has occurred in respect thereof, on
or before the end of the Collection Period in which such Maturity Date occurs)
and for any subsequent Due Date therefor as of which such Mortgage Loan or such
B Note remains outstanding and part of the Trust, if no Scheduled Payment (other
than the related delinquent Balloon Payment) is due for such Due Date, the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Scheduled Payment that would have
been due in respect of such Mortgage Loan or such B Note on such Due Date, if it
had been required to continue to accrue interest in accordance with its terms,
and to pay principal in accordance with the amortization schedule in effect
immediately prior to, and without regard to the occurrence of, its most recent
Maturity Date (as such may have been extended in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan or such B Note granted or agreed to by the
Master Servicer or the Special Servicer pursuant to the terms
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hereof), and (ii) with respect to any REO Mortgage Loan for any Due Date
therefor as of which the related REO Property remains part of the Trust, the
scheduled monthly payment of principal and interest deemed to be due in respect
thereof on such Due Date equal to the Scheduled Payment (or, in the case of a
Balloon Mortgage Loan or B Note described in the preceding clause of this
definition, the Assumed Scheduled Payment) that was due in respect of the
related Mortgage Loan or the related B Note on the last Due Date prior to its
becoming an REO Mortgage Loan. The amount of the Assumed Scheduled Payment for
any A Note or B Note shall be calculated solely by reference to the terms of
such A Note or B Note, as applicable (as modified in connection with any
bankruptcy or similar proceeding involving the related Mortgagor or pursuant to
a modification, waiver or amendment of such Mortgage Loan granted or agreed to
by the Master Servicer or the Special Servicer pursuant to the terms hereof) and
without regard to the remittance provisions of the related Intercreditor
Agreement.
"AUTHENTICATING AGENT" means any authenticating agent serving
in such capacity pursuant to Section 7.10.
"AUTHORIZED OFFICER" means any Person that may execute an
Officer's Certificate on behalf of the Depositor.
"AVAILABLE ADVANCE REIMBURSEMENT AMOUNT" has the meaning set
forth in Section 4.6(a).
"AVAILABLE DISTRIBUTION AMOUNT" means, with respect to any
Distribution Date, an amount equal to the aggregate of (a) all amounts on
deposit in the Distribution Account as of the commencement of business on such
Distribution Date that represent payments and other collections on or in respect
of the Mortgage Loans and any REO Properties that were received by the Master
Servicer or the Special Servicer through the end of the related Collection
Period exclusive of (i) any such amounts that were deposited in the Distribution
Account in error, (ii) amounts that are payable or reimbursable to any Person
other than the Certificateholders (including amounts payable to the Master
Servicer in respect of unpaid Master Servicing Fees, any Primary Servicer in
respect of unpaid Primary Servicing Fees, the Special Servicer in respect of
unpaid Special Servicer Compensation, the Trustee in respect of unpaid Trustee
Fees, the Paying Agent in respect of unpaid Paying Agent Fees or to the parties
entitled thereto in respect of the unpaid Excess Servicing Fees), (iii) amounts
that constitute Prepayment Premiums, (iv) if such Distribution Date occurs
during January, other than in a leap year, or February of any year, the Interest
Reserve Amounts with respect to Interest Reserve Loans deposited in the Interest
Reserve Account, (v) in the case of each REO Property related to an A/B Mortgage
Loan or the Loan Pair, all amounts received with respect to such A/B Mortgage
Loan or Loan Pair that are required to be paid to the holder of the related B
Note or the RSA Companion Loan, as applicable, pursuant to the terms of the
related B Note or the RSA Companion Loan, as applicable, and the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement (which amounts will
be deposited into the related A/B Loan Custodial Account or RSA Companion Loan
Custodial Account, as applicable, pursuant to Section 5.1(c) and withdrawn from
such accounts pursuant to Section 5.2(a)) and (vi) Scheduled Payments collected
but due on a Due Date subsequent to the related Collection Period and (b) if and
to the extent not already among the amounts described in clause (a), (i) the
aggregate amount of any P&I Advances made by the Master Servicer, the Trustee or
the Fiscal Agent for such Distribution Date pursuant to Section 4.1 and/or
Section 4.3, (ii) the aggregate amount of any Compensating Interest payments
made
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by the Master Servicer for such Distribution Date pursuant to the terms hereof,
and (iii) if such Distribution Date occurs in March of any year, commencing
March 2004, the aggregate of the Interest Reserve Amounts then held on deposit
in the Interest Reserve Account in respect of each Interest Reserve Loan.
"B NOTE" means, with respect to any A/B Mortgage Loan, the
related subordinated Mortgage Note not included in the Trust, which is
subordinated in right of payment to the related A Note to the extent set forth
in the related Intercreditor Agreement. There are no B Notes related to the
Trust.
"BALLOON MORTGAGE LOAN" means a Mortgage Loan that provides
for Scheduled Payments based on an amortization schedule that is significantly
longer than its term to maturity and that is expected to have a remaining
principal balance equal to or greater than 5% of its original principal balance
as of its stated maturity date, unless prepaid prior thereto.
"BALLOON PAYMENT" means, with respect to any Balloon Mortgage
Loan, B Note or the RSA Companion Loan, the Scheduled Payment payable on the
Maturity Date of such Mortgage Loan or B Note.
"BANKRUPTCY LOSS" means a loss arising from a proceeding under
the United States Bankruptcy Code or any other similar state law or other
proceeding with respect to the Mortgagor of, or Mortgaged Property under, a
Mortgage Loan, including, without limitation, any Deficient Valuation Amount or
losses, if any, resulting from any Debt Service Reduction Amount for the month
in which the related Remittance Date occurs.
"BASE INTEREST FRACTION" means, with respect to any Principal
Prepayment of any Mortgage Loan that provides for payment of a Prepayment
Premium, and with respect to any Class of Certificates, a fraction (A) whose
numerator is the greater of (x) zero and (y) the difference between (i) the
Pass-Through Rate on that Class of Certificates and (ii) the Discount Rate used
in calculating the Prepayment Premium with respect to the Principal Prepayment
(or the current Discount Rate if not used in such calculation) and (B) whose
denominator is the difference between (i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Discount Rate used in calculating the Prepayment
Premium with respect to that Principal Prepayment (or the current Discount Rate
if not used in such calculation), provided, however, that under no circumstances
will the Base Interest Fraction be greater than one. If the Discount Rate
referred to above is greater than the Mortgage Rate on the related Mortgage
Loan, then the Base Interest Fraction will equal zero.
"BENEFIT PLAN OPINION" means an Opinion of Counsel
satisfactory to the Paying Agent and the Master Servicer to the effect that any
proposed transfer will not (i) cause the assets of the Trust to be regarded as
plan assets for purposes of the Plan Asset Regulations or (ii) give rise to any
fiduciary duty on the part of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Paying Agent, the Certificate Registrar or the Fiscal
Agent.
"BOOK-ENTRY CERTIFICATES" means certificates evidencing a
beneficial interest in a Class of Certificates, ownership and transfer of which
shall be made through book entries as described in Section 3.7; provided, that
after the occurrence of a condition whereupon book-
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entry registration and transfer are no longer authorized and Definitive
Certificates are to be issued to the Certificate Owners, such certificates shall
no longer be "Book-Entry Certificates."
"BSCMI" has the meaning set forth in the Preliminary Statement
hereto.
"BSCMI LOANS" means, collectively, those Mortgage Loans sold
to the Depositor pursuant to the Mortgage Loan Purchase Agreement I and shown on
Schedule I hereto.
"BUSINESS DAY" means any day other than (i) a Saturday or a
Sunday, (ii) a legal holiday in New York, New York, Chicago, Illinois, Des
Moines, Iowa (but only with respect to matters related to the performance of
obligations of Principal Global Investors, LLC as Primary Servicer under the
related Primary Servicing Agreement), San Francisco, California or the principal
cities in which the Special Servicer, the Trustee, the Paying Agent or the
Master Servicer conducts servicing or trust operations, or (iii) a day on which
banking institutions or savings associations in Minneapolis, Minnesota,
Columbia, Maryland, New York, New York, Chicago, Illinois or San Francisco,
California are authorized or obligated by law or executive order to be closed.
"CASH LIQUIDATION" means, as to any Defaulted Mortgage Loan
other than a Mortgage Loan with respect to which the related Mortgaged Property
became REO Property, the sale of such Defaulted Mortgage Loan. The Master
Servicer shall maintain records in accordance with the Servicing Standard (and,
in the case of Specially Serviced Mortgage Loans, based on the written reports
with respect to such Cash Liquidation delivered by the Special Servicer to the
Master Servicer), of each Cash Liquidation.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601, et
seq.).
"CERTIFICATE ACCOUNT" means one or more separate accounts
established and maintained by the Master Servicer (or any Sub-Servicer or
Primary Servicer on behalf of the Master Servicer) pursuant to Section 5.1(a),
each of which shall be an Eligible Account.
"CERTIFICATE BALANCE" means, with respect to any Certificate
or Interest (other than the Class X Certificates and the Residual Certificates)
as of any Distribution Date, the maximum specified dollar amount of principal to
which the Holder thereof is then entitled hereunder, such amount being equal to
the initial principal amount set forth on the face of such Certificate (in the
case of a Certificate), or as ascribed thereto herein (in the case of an
Interest), minus (i) the amount of all principal distributions previously made
with respect to such Certificate pursuant to Section 6.5(a) or deemed to have
been made with respect to such Interest pursuant to Section 6.2(a) or Section
6.3(a), as the case may be and (ii) all Realized Losses allocated or deemed to
have been allocated to such Interest or Certificate in reduction of Certificate
Balance pursuant to Section 6.6. The Certificate Balance of the Class A-1A
Component, the Class A-1B Component and the Class A-1C Component shall equal the
Certificate Balance of the REMIC II Regular Interest A-1A, the REMIC II Regular
Interest A-1B and the REMIC II Regular Interest A-1C, respectively. The
Certificate Balance of the Class A-2A Component, the Class A-2B Component and
the Class A-2C Component shall equal the Certificate Balance of the REMIC II
Regular Interest A-2A, the REMIC II Regular Interest A-2B
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and the REMIC II Regular Interest A-2C, respectively. The Certificate Balance of
the Class A-3A Component and the Class A-3B Component shall equal the
Certificate Balance of the REMIC II Regular Interest A-3A and the REMIC II
Regular Interest A-3B, respectively. The Certificate Balance of the Class A-4A
Component, the Class A-4B Component and the Class A-4C Component shall equal the
Certificate Balance of the REMIC II Regular Interest A-4A, the REMIC II Regular
Interest A-4B and the REMIC II Regular Interest A-4C, respectively. The
Certificate Balance of the Class B-1 Component, the Class B-2 Component and the
Class B-3 Component shall equal the Certificate Balance of the REMIC II Regular
Interest B-1, the REMIC II Regular Interest B-2 and the REMIC II Regular
Interest B-3, respectively. The Certificate Balance of the Class C-1 Component,
the Class C-2 Component and the Class C-3 Component shall equal the Certificate
Balance of the REMIC II Regular Interest C-1, the REMIC II Regular Interest C-2
and the REMIC II Regular Interest C-3, respectively. The Certificate Balance of
the Class D-1 Component and the Class D-2 Component shall equal the Certificate
Balance of the REMIC II Regular Interest D-1 and the REMIC II Regular Interest
D-2, respectively. The Certificate Balance of the Class F-1 Component and the
Class F-2 Component shall equal the Certificate Balance of the REMIC II Regular
Interest F-1 and the REMIC II Regular Interest F-2, respectively. The
Certificate Balance of the Class J-1 Component and the Class J-2 Component shall
equal the Certificate Balance of the REMIC II Regular Interest J-1 and the REMIC
II Regular Interest J-2, respectively.
"CERTIFICATE OWNER" means, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency).
"CERTIFICATE REGISTER" has the meaning set forth in
Section 3.2.
"CERTIFICATE REGISTRAR" means the registrar appointed
pursuant to Section 3.2 and initially shall be the Paying Agent.
"CERTIFICATEHOLDERS" has the meaning set forth in the
definition of "Holder."
"CERTIFICATES" means, collectively, the REMIC III
Certificates, the Class R-I Certificates and the Class R-II Certificates.
"CERTIFICATION PARTIES" has the meaning set forth in
Section 8.26(b).
"CERTIFYING PERSON" has the meaning set forth in
Section 8.26(b).
"CLASS" means, with respect to the REMIC I Interests, REMIC II
Interests or REMIC III Certificates, any Class of such Certificates or
Interests.
"CLASS A-1 CERTIFICATES," "CLASS A-2 CERTIFICATES," "CLASS A-3
CERTIFICATES," "CLASS A-4 CERTIFICATES," "CLASS X-1 CERTIFICATES," "CLASS X-2
CERTIFICATES," "CLASS B CERTIFICATES," "CLASS C CERTIFICATES," "CLASS D
CERTIFICATES," "CLASS E Certificates," "CLASS F CERTIFICATES," "CLASS G
CERTIFICATES," "CLASS H CERTIFICATES," "CLASS J CERTIFICATES," "CLASS K
CERTIFICATES," "CLASS L CERTIFICATES," "CLASS M CERTIFICATES," "CLASS N
CERTIFICATES," "CLASS R-I CERTIFICATES," "CLASS R-II CERTIFICATES," or "CLASS
R-III CERTIFICATES," mean the
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Certificates designated as "Class A-1," "Class A-2," "Class A-3," "Class A-4,"
"Class X-1," "Class X-2," "Class B," "Class C," "Class D," "Class E," "Class F,"
"Class G," "Class H," "Class J," "Class K," "Class L," "Class M," "Class N,"
"Class R-I," "Class R-II" and "Class R-III" respectively, on the face thereof,
in substantially the form attached hereto as Exhibits.
"CLASS A CERTIFICATES" means the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates and the Class A-4
Certificates, collectively.
"CLASS A-1A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1A.
"CLASS A-1B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1B.
"CLASS A-1C COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-1 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-1C.
"CLASS A-2A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-2 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2A.
"CLASS A-2B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-2 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2B.
"CLASS A-2C COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-2 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-2C.
"CLASS A-3A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-3A.
"CLASS A-3B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-3 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-3B.
"CLASS A-4A COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4A.
"CLASS A-4B COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4B.
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"CLASS A-4C COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class A-4 Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest A-4C.
"CLASS B-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest B-1.
"CLASS B-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest B-2.
"CLASS B-3 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class B Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest B-3.
"CLASS C-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class C Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest C-1.
"CLASS C-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class C Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest C-2.
"CLASS C-3 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class C Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest C-3.
"CLASS D-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class D Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest D-1.
"CLASS D-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class D Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest D-2.
"CLASS F-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class F Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest F-1.
"CLASS F-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class F Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest F-2.
"CLASS J-1 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class J Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest J-1.
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"CLASS J-2 COMPONENT" means a component of the beneficial
interest in REMIC III evidenced by the Class J Certificates, which component
represents a Certificate Balance equal to the Certificate Balance of the REMIC
II Regular Interest J-2.
"CLASS N GRANTOR TRUST" means that portion of the Trust
consisting of the Class N Grantor Trust Interest.
"CLASS N GRANTOR TRUST INTEREST" means that portion of the
rights represented by the Class N Certificates that evidences beneficial
ownership of the Excess Interest and the Excess Interest Sub-account, as
described in Section 12.1(b) hereof.
"CLASS N REMIC INTEREST" means that portion of the rights
represented by the Class N Certificates that evidences a regular interest in
REMIC III, which rights consist of the rights to the distributions described in
Section 6.5 hereof and all other rights of the Holders of the Class N
Certificates other than those comprising the Class N Grantor Trust.
"CLASS X CERTIFICATES" means the Class X-1 Certificates and
the Class X-2 Certificates.
"CLASS X-1 INTEREST AMOUNT" means, with respect to any
Distribution Date and the related Interest Accrual Period, interest equal to the
product of (i) one-twelfth of a per annum rate equal to the weighted average of
the Class X-1 Strip Rates for the Class A-1A Component, Class A-1B Component,
Class A-1C Component, Class A-2A Component, Class A-2B Component, Class A-2C
Component, Class A-3A Component, Class A-3B Component, Class A-4A Component,
Class A-4B Component, Class A-4C Component, Class B-1 Component, Class B-2
Component, Class B-3 Component, Class C-1 Component, Class C-2 Component, Class
C-3 Component, Class D-1 Component, Class D-2 Component, Class E Certificates,
Class F-1 Component, Class F-2 Component, Class G Certificates, Class H
Certificates, Class J-1 Component, Class J-2 Component, Class K Certificates,
Class L Certificates, Class M Certificates and Class N Certificates, weighted on
the basis of the respective Certificate Balances of such Classes of Certificates
or such Components immediately prior to such Distribution Date and (ii) the
Class X-1 Notional Amount for such Distribution Date.
"CLASS X-1 NOTIONAL AMOUNT" means, with respect to any
Distribution Date, the aggregate of the Certificate Balances of the Principal
Balance Certificates as of the close of business on the preceding Distribution
Date.
"CLASS X-1 STRIP RATE" means, with respect to any Class of
Certificates (other than the Class A-1, Class A-2, Class A-3, Class A-4, Class
B, Class C, Class D, Class F, Class J, Class X and the Residual Certificates),
the Class A-1A Component, the Class A-1B Component, the Class A-1C Component,
the Class A-2A Component, the Class A-2B Component, the Class A-2C Component,
the Class B-1 Component, the Class B-2 Component, the Class B-3 Component, the
Class C-1 Component, the Class C-2 Component, the Class C-3 Component, the Class
D-1 Component, the Class D-2 Component, the Class F-1 Component, the Class F-2
Component, the Class J-1 Component and the Class J-2 Component:
(A) for any Distribution Date occurring on or before August
2005, the excess, if any, of (i) the Weighted Average REMIC I Net Mortgage Rate
for such Distribution Date over (ii) (x) in the case of the Class A-1A
Component, Class J-1 Component, Class K Certificates,
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Class L Certificates, Class M Certificates and Class N Certificates, the
Pass-Through Rate for such Class of Certificates or such Component and (y) in
the case of the Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class A-2C Component, Class A-3A Component,
Class A-3B Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class
C-1 Component, Class C-2 Component, Class C-3 Component, Class D-1 Component,
Class D-2 Component, Class E Certificates, Class F-1 Component, Class F-2
Component, Class G Certificates, Class H Certificates and Class J-2 Component,
the greater of (1) the rate per annum corresponding to such Distribution Date as
set forth in Schedule IX attached hereto and (2) the Pass-Through Rate for such
Class of Certificates or Components;
(B) for any Distribution Date occurring after August 2005 and
on or before August 2006, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class F-1 Component, Class G
Certificates, Class H Certificates, Class J-1 Component, Class J-2 Component,
Class K Certificates, Class L Certificates, Class M Certificates and Class N
Certificates, the Pass-Through Rate for such Class of Certificates or such
Component and (y) in the case of the Class Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class A-2C Component, Class A-3A Component,
Class A-3B Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class
C-1 Component, Class C-2 Component, Class C-3 Component, Class D-1 Component,
Class D-2 Component, Class E Certificates and Class F-2 Component, the greater
of (1) the rate per annum corresponding to such Distribution Date as set forth
in Schedule X attached hereto and (2) the Pass-Through Rate for such Class of
Certificates or Components;
(C) for any Distribution Date occurring after August 2006 and
on or before August 2007, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class D-1 Component, Class E Certificates, Class F-1 Component, Class
F-2 Component, Class G Certificates, Class H Certificates, Class J-1 Component,
Class J-2 Component, Class K Certificates, Class L Certificates, Class M
Certificates and Class N Certificates, the Pass-Through Rate for such Class of
Certificates or such Component and (y) in the case of the Class A-2B Component,
Class A-2C Component, Class A-3A Component, Class A-3B Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2
Component, Class C-3 Component and Class D-2 Component, the greater of (1) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
XI attached hereto and (2) the Pass-Through Rate for such Class of Certificates
or Components;
(D) for any Distribution Date occurring after August 2007 and
on or before August 2008, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class C-1 Component, Class D-1 Component, Class
D-2 Component, Class E Certificates, Class F-1 Component, Class F-2 Component,
Class G Certificates, Class H Certificates, Class J-1 Component, Class J-2
Component, Class K Certificates, Class L Certificates, Class M Certificates and
Class N Certificates, the Pass-Through Rate for such Class of Certificates or
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such Component and (y) in the case of the Class A-2C Component, Class A-3A
Component, Class A-3B Component, Class A-4A Component, Class A-4B Component,
Class A-4C Component, Class B-1 Component, Class B-2 Component, Class B-3
Component, Class C-2 Component and Class C-3 Component, the greater of (1) the
rate per annum corresponding to such Distribution Date as set forth in Schedule
XII attached hereto and (2) the Pass-Through Rate for such Class of Certificates
or Components;
(E) for any Distribution Date occurring after August 2008 and
on or before August 2009, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class A-2C Component, Class A-3A Component,
Class C-1 Component, Class C-2 Component, Class D-1 Component, Class D-2
Component, Class E Certificates, Class F-1 Component, Class F-2 Component, Class
G Certificates, Class H Certificates, Class J-1 Component, Class J-2 Component,
Class K Certificates, Class L Certificates, Class M Certificates and Class N
Certificates, the Pass-Through Rate for such Class of Certificates or such
Component and (y) in the case of the Class A-3B Component, Class A-4A Component,
Class A-4B Component, Class A-4C Component, Class B-1 Component, Class B-2
Component, Class B-3 Component and Class C-3 Component, the greater of (1) the
rate per annum corresponding to such Distribution Date as set forth on Schedule
XIII attached hereto and (2) the Pass-Through Rate for such Class of
Certificates or Components;
(F) for any Distribution Date occurring after August 2009 and
on or before August 2010, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class A-2C Component, Class A-3A Component,
Class A-3B Component, Class A-4A Component, Class B-1 Component, Class C-1
Component, Class C-2 Component, Class C-3 Component, Class D-1 Component, Class
D-2 Component, Class E Certificates, Class F-1 Component, Class F-2 Component,
Class G Certificates, Class H Certificates, Class J-1 Component, Class J-2
Component, Class K Certificates, Class L Certificates, Class M Certificates and
Class N Certificates, the Pass-Through Rate for such Class of Certificates or
such Component and (y) in the case of the Class A-4B Component, Class A-4C
Component, Class B-2 Component and Class B-3 Component, the greater of (1) the
rate per annum corresponding to such Distribution Date as set forth on Schedule
XIV attached hereto and (2) the Pass-Through Rate for such Class of Certificates
or Components;
(G) for any Distribution Date occurring after August 2010 and
on or before August 2011, the excess, if any, of (i) the Weighted Average REMIC
I Net Mortgage Rate for such Distribution Date over (ii) (x) in the case of the
Class A-1A Component, Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class A-2C Component, Class A-3A Component,
Class A-3B Component, Class A-4A Component, Class A-4B Component, Class B-1
Component, Class B-2 Component, Class C-1 Component, Class C-2 Component, Class
C-3 Component, Class D-1 Component, Class D-2 Component, Class E Certificates,
Class F-1 Component, Class F-2 Component, Class G Certificates, Class H
Certificates, Class J-1 Component, Class J-2 Component, Class K Certificates,
Class L Certificates, Class M Certificates and Class N Certificates, the
Pass-Through Rate for such Class of Certificates or such Component and (y) in
the case of the Class A-4C Component and Class B-3 Component, the greater of (1)
the rate per annum corresponding to such Distribution Date as
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set forth on Schedule XV attached hereto and (2) the Pass-Through Rate for such
Class of Certificates or Components; and
(H) for any Distribution Date occurring after August 2011, and
for any Class of Certificates or Components, the excess of (i) the Weighted
Average REMIC I Net Mortgage Rate for such Distribution Date over (ii) the
Pass-Through Rate for each such Class of Certificates or Component. In no event
will any Class X-1 Strip Rate be less than zero.
"CLASS X-2 INTEREST AMOUNT" means,
(A) with respect to any Distribution Date occurring on or
before August 2005 and the related Interest Accrual Period, interest equal to
the product of (i) one-twelfth of a per annum rate equal to the weighted average
of the Class X-2 Strip Rates for the Class A-1B Component, Class A-1C Component,
Class A-2A Component, Class A-2B Component, Class A-2C Component, Class A-3A
Component, Class A-3B Component, Class A-4A Component, Class A-4B Component,
Class A-4C Component, Class B-1 Component, Class B-2 Component, Class B-3
Component, Class C-1 Component, Class C-2 Component, Class C-3 Component, Class
D-1 Component, Class D-2 Component, Class E Certificates, Class F-1 Component,
Class F-2 Component, Class G Certificates, Class H Certificates and Class J-2
Component, weighted on the basis of the respective Certificate Balances of such
Classes of Certificates or such Components immediately prior to such
Distribution Date and (ii) the Class X-2 Notional Amount for such Distribution
Date;
(B) with respect to any Distribution Date occurring after
August 2005 and on or before the Distribution Date in August 2006 and the
related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class X-2
Strip Rates for the Class A-1C Component, Class A-2A Component, Class A-2B
Component, Class A-2C Component, Class A-3A Component, Class A-3B Component,
Class A-4A Component, Class A-4B Component, Class A-4C Component, Class B-1
Component, Class B-2 Component, Class B-3 Component, Class C-1 Component, Class
C-2 Component, Class C-3 Component, Class D-1 Component, Class D-2 Component,
Class E Certificates and Class F-2 Component, weighted on the basis of the
respective Certificate Balances of such Classes of Certificates or such
Component immediately prior to such Distribution Date and (ii) the Class X-2
Notional Amount for such Distribution Date;
(C) with respect to any Distribution Date occurring after
August 2006 and on or before the Distribution Date in August 2007 and the
related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class A-2B
Component, Class A-2C Component, Class A-3A Component, Class A-3B Component,
Class A-4A Component, Class A-4B Component, Class A-4C Component, Class B-1
Component, Class B-2 Component, Class B-3 Component, Class C-1 Component, Class
C-2 Component, Class C-3 Component and Class D-2 Component, weighted on the
basis of the respective Certificate Balances of such Classes of Certificates or
such Component immediately prior to such Distribution Date and (ii) the Class
X-2 Notional Amount for such Distribution Date;
(D) with respect to any Distribution Date occurring after
August 2007 and on or before the Distribution Date in August 2008 and the
related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the
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Class A-2C Component, Class A-3A Component, Class A-3B Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-2 Component and Class C-3
Component, weighted on the basis of the respective Certificate Balances of such
Classes of Certificates or such Component immediately prior to such Distribution
Date and (ii) the Class X-2 Notional Amount for such Distribution Date;
(E) with respect to any Distribution Date occurring after
August 2008 and on or before the Distribution Date in August 2009 and the
related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class A-3B
Component, Class A-4A Component, Class A-4B Component, Class A-4C Component,
Class B-1 Component, Class B-2 Component, Class B-3 Component and Class C-3
Component, weighted on the basis of the respective Certificate Balances of such
Classes of Certificates or such Component immediately prior to such Distribution
Date and (ii) the Class X-2 Notional Amount for such Distribution Date;
(F) with respect to any Distribution Date occurring after
August 2009 and on or before the Distribution Date in August 2010 and the
related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class A-4B
Component, Class A-4C Component, Class B-2 Component and Class B-3 Component,
weighted on the basis of the respective Certificate Balances of such Classes of
Certificates or such Component immediately prior to such Distribution Date and
(ii) the Class X-2 Notional Amount for such Distribution Date; and
(G) with respect to any Distribution Date occurring after
August 2010 and on or before the Distribution Date in August 2011 and the
related Interest Accrual Period, interest equal to the product of (i)
one-twelfth of a per annum rate equal to the weighted average of the Class A-4C
Component and Class B-3 Component, weighted on the basis of the respective
Certificate Balances of such Classes of Certificates or such Component
immediately prior to such Distribution Date and (ii) the Class X-2 Notional
Amount for such Distribution Date.
"CLASS X-2 NOTIONAL AMOUNT" means,
(A) with respect to any Distribution Date occurring on or
before the Distribution Date in August 2005, the aggregate of the Certificate
Balances of the Class A-1B Component, Class A-1C Component, Class A-2A
Component, Class A-2B Component, Class A-2C Component, Class A-3A Component,
Class A-3B Component, Class A-4A Component, Class A-4B Component, Class A-4C
Component, Class B-1 Component, Class B-2 Component, Class B-3 Component, Class
C-1 Component, Class C-2 Component, Class C-3 Component, Class D-1 Component,
Class D-2 Component, Class E Certificates, Class F-1 Component, Class F-2
Component, Class G Certificates, Class H Certificates and Class J-2 Component as
of the close of business on the preceding Distribution Date,
(B) with respect to any Distribution Date after the
Distribution Date in August 2005 and on or before the Distribution Date in
August 2006, the aggregate of the Certificate Balances of the Class X-2 Strip
Rates for the Class A-1C Component, Class A-2A Component, Class A-2B Component,
Class A-2C Component, Class A-3A Component, Class A-3B Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-
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1 Component, Class B-2 Component, Class B-3 Component, Class C-1 Component,
Class C-2 Component, Class C-3 Component, Class D-1 Component, Class D-2
Component, Class E Certificates and Class F-2 Component as of the close of
business on the preceding Distribution Date,
(C) with respect to any Distribution Date after the
Distribution Date in Augut 2006 and on or before the Distribution Date in August
2007, the aggregate of the Certificate Balances of the Class A-2B Component,
Class A-2C Component, Class A-3A Component, Class A-3B Component, Class A-4A
Component, Class A-4B Component, Class A-4C Component, Class B-1 Component,
Class B-2 Component, Class B-3 Component, Class C-1 Component, Class C-2
Component, Class C-3 Component and Class D-2 Component as of the close of
business on the preceding Distribution Date,
(D) with respect to any Distribution Date after the
Distribution Date in August 2007 and on or before the Distribution Date in
August 2008, the aggregate of the Certificate Balances of the Class A-2C
Component, Class A-3A Component, Class A-3B Component, Class A-4A Component,
Class A-4B Component, Class A-4C Component, Class B-1 Component, Class B-2
Component, Class B-3 Component, Class C-2 Component and Class C-3 Component as
of the close of business on the preceding Distribution Date,
(E) with respect to any Distribution Date after the
Distribution Date in August 2008 and on or before the Distribution Date in
August 2009, the aggregate of the Certificate Balances of the Class A-3B
Component, Class A-4A Component, Class A-4B Component, Class A-4C Component,
Class B-1 Component, Class B-2 Component, Class B-3 Component and Class C-3
Component as of the close of business on the preceding Distribution Date,
(F) with respect to any Distribution Date after the
Distribution Date in August 2009 and on or before the Distribution Date in
August 2010, the aggregate of the Certificate Balances of the Class A-4B
Component, Class A-4C Component, Class B-2 Component and Class B-3 Component as
of the close of business on the preceding Distribution Date,
(G) with respect to any Distribution Date after the
Distribution Date in August 2010 and on or before the Distribution Date in
August 2011, the aggregate of the Certificate Balances of the Class A-4C
Component and Class B-3 Component as of the close of business on the preceding
Distribution Date, and
(H) with respect to any Distribution Date occurring after the
Distribution Date in August 2011, zero.
"CLASS X-2 STRIP RATE" means,
(A) for any Distribution Date occurring on or before August
2005, with respect to those components of the Class X-2 Notional Amount
outstanding immediately prior to the related Distribution Date, the excess, if
any, of (x) the lesser of (i) the rate per annum corresponding to such
Distribution Date as set forth in Schedule IX attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
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(B) for any Distribution Date occurring after August 2005 and
on or before August 2006, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule X attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(C) for any Distribution Date occurring after August 2006 and
on or before August 2007, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XI attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(D) for any Distribution Date occurring after August 2007 and
on or before August 2008, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XII attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(E) for any Distribution Date occurring after August 2008 and
on or before August 2009, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XIII attached hereto and (ii)
the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over
(y) the Pass-Through Rate for such Class of Certificates or Component;
(F) for any Distribution Date occurring after August 2009 and
on or before August 2010, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XIV attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component;
(G) for any Distribution Date occurring after August 2010 and
on or before August 2011, with respect to those components of the Class X-2
Notional Amount outstanding immediately prior to the related Distribution Date,
the excess, if any, of (x) the lesser of (i) the rate per annum corresponding to
such Distribution Date as set forth in Schedule XV attached hereto and (ii) the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date over (y)
the Pass-Through Rate for such Class of Certificates or Component; and
(H) for any Distribution Date occurring after August 2011, the
Class X-2 Strip Rate for any Certificate or Component will be equal to zero.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the 1934 Act, which initially shall
be the Depository.
"CLEARSTREAM BANK" means Clearstream Bank, societe anonyme.
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"CLOSING DATE" means August 20, 2003.
"CMSA" means the Commercial Mortgage Securities Association.
"CMSA OPERATING STATEMENT ANALYSIS REPORT" means a report
which is one element of the CMSA Methodology for Analyzing and Reporting
Property Income Statements and which is substantially in the form of Exhibit N.
"CMSA REPORTS" means the Restricted Servicer Reports and the
Unrestricted Servicer Reports, collectively.
"CODE" means the Internal Revenue Code of 1986, as amended,
any successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form and proposed
regulations thereunder, to the extent that, by reason of their proposed
effective date, such proposed regulations would apply to the Trust.
"COLLECTION PERIOD" means, with respect to any Distribution
Date, the period beginning on the day after the Determination Date in the month
preceding the month of such Distribution Date (or in the case of the first
Distribution Date, the Cut-Off Date) and ending on the Determination Date in the
month in which the Distribution Date occurs.
"COMMISSION" has the meaning set forth in Section 8.26(a).
"COMPENSATING INTEREST" means with respect to any Distribution
Date, an amount equal to the lesser of (A) the excess of (i) Prepayment Interest
Shortfalls incurred in respect of the Mortgage Loans other than the Specially
Serviced Mortgage Loans resulting from (x) voluntary Principal Prepayments on
such Mortgage Loans (but not including the RSA Companion Loan) or (y) to the
extent that the Master Servicer did not apply the proceeds thereof in accordance
with the terms of the related Mortgage Loan documents, involuntary Principal
Prepayments during the related Collection Period over (ii) the aggregate of
Prepayment Interest Excesses resulting from Principal Prepayments on the
Mortgage Loans (but not including the RSA Companion Loan) during the same
Collection Period and (B) the aggregate of the portion of the aggregate Master
Servicing Fee accrued at a rate per annum equal to 2 basis points for the
related Collection Period calculated in respect of all the Mortgage Loans
(including REO Mortgage Loans but not including the RSA Companion Loan), plus
any investment income earned on the amount prepaid prior to such Distribution
Date.
"COMPONENT" means any of the Class A-1A Component, the Class
A-1B Component, the Class A-1C Component, the Class A-2A Component, the Class
A-2B Component, the Class A-2C Component, the Class A-3A Component, the Class
A-3B Component, the Class A-4A Component, the Class A-4B Component, the Class
A-4C Component, the Class B-1 Component, the Class B-2 Component, the Class B-3
Component, the Class C-1 Component, the Class C-2 Component, the Class C-3
Component, the Class D-1 Component, the Class D-2 Component, the Class F-1
Component, the Class F-2 Component, the Class J-1 Component and the Class J-2
Component.
"CONDEMNATION PROCEEDS" means any awards resulting from the
full or partial condemnation or any eminent domain proceeding or any conveyance
in lieu or in anticipation thereof with respect to a Mortgaged Property by or to
any governmental, quasi-governmental
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authority or private entity with condemnation powers other than amounts to be
applied to the restoration, preservation or repair of such Mortgaged Property or
released to the related Mortgagor in accordance with the terms of the Mortgage
Loan and (if applicable) its related B Note or the RSA Companion Loan, and with
respect to the Mortgaged Property securing the Xxxx Xxxxxxx Tower Companion
Loans and the Xxxx Xxxxxxx Tower Pari Passu Loan, any portion of such amounts
payable to the holder the Xxxx Xxxxxxx Tower Pari Passu Loan.
"CONTROL APPRAISAL EVENT" has the meaning set forth in
Section 9.40 hereof.
"CONTROLLING CLASS" means the most subordinate Class of REMIC
Regular Certificates outstanding at any time of determination; provided, that,
if the aggregate Certificate Balance of such Class is less than 25% of the
initial Certificate Balance of such Class as of the Closing Date, the
Controlling Class shall be the next most subordinate Class of REMIC Regular
Certificates outstanding. As of the Closing Date, the Controlling Class will be
the Class N Certificates.
"CONTROLLING PERSON" means, with respect to any Person, any
other Person who "controls" such Person within the meaning of the 1933 Act.
"CORPORATE TRUST OFFICE" means, with respect to the
presentment and surrender of Certificates for the final distribution thereon or
the presentment and surrender of Certificates for any other purpose, the
principal corporate trust office of the Certificate Registrar. The principal
corporate trust office of the Trustee is presently located at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Asset-Backed Securities Trust
Services Group-- Xxxxxx Xxxxxxx Capital I Inc. Series 2003-TOP11 and the office
of the Certificate Registrar is presently located for certificate transfer
purposes at Xxxxx Fargo Center, Sixth and Marquette Avenue, MAC #N9303-121,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS)--
Xxxxxx Xxxxxxx Capital I Inc. Series 2003-TOP11, and for all other purposes at
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services (CMBS)-- Xxxxxx Xxxxxxx Capital I Inc. Series 2003-TOP11, or at such
other address as the Trustee or Certificate Registrar may designate from time to
time by notice to the Certificateholders, the Depositor, the Master Servicer,
the Paying Agent and the Special Servicer.
"CORRESPONDING REMIC I REGULAR INTEREST" means with respect to
each Mortgage Loan, the REMIC I Regular Interest having an initial Certificate
Balance equal to the Principal Balance of such Mortgage Loan outstanding as of
the Cut-Off Date, after taking into account all principal and interest payments
made or due prior to the Cut-Off Date.
"CORRESPONDING REMIC II REGULAR INTEREST" means (i) with
respect to each Class of Certificates other than the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class F Certificates
and Class J Certificates, the REMIC II Regular Interest having the same letter
designation, (ii) with respect to the Class A-1 Certificates, the REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B and REMIC II Regular
Interest A-1C, (iii) with respect to the Class A-2 Certificates, the REMIC II
Regular Interest A-2A, the REMIC II Regular Interest A-2B and REMIC II Regular
Interest A-2C, (iv) with respect to the Class A-3 Certificates, the REMIC II
Regular Interest A-3A and REMIC II Regular Xxxxxxxx X-0X, (v) with
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respect to the Class A-4 Certificates, the REMIC II Regular Interest A-4A, the
REMIC II Regular Interest A-4B and REMIC II Regular Interest A-4C, (vi) with
respect to the Class B Certificates, the REMIC II Regular Interest B-1, the
REMIC II Regular Interest B-2 and the REMIC II Regular Interest B-3, (vii) with
respect to the Class C Certificates, the REMIC II Regular Interest C-1, the
REMIC II Regular Interest C-2 and the REMIC II Regular Interest C-3, (viii) with
respect to the Class D Certificates, the REMIC II Regular Interest D-1 and the
REMIC II Regular Interest D-2, (ix) with respect to the Class F Certificates,
the REMIC II Regular Interest F-1 and the REMIC II Regular Interest F-2 and (x)
with respect to the Class J Certificates, the REMIC II Regular Interest J-1 and
the REMIC II Regular Interest J-2.
"CROSSED MORTGAGE LOAN" has the meaning set forth in Section
2.3(a).
"CUSTODIAN" means the Trustee or any Person who is appointed
by the Trustee at any time as custodian pursuant to Section 7.9 and who is
unaffiliated with the Depositor and each Seller and satisfies the eligibility
requirements of the Trustee as set forth in Section 7.5.
"CUSTOMER" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"CUT-OFF DATE" means the end of business on August 1, 2003.
The Cut-Off Date for any Mortgage Loan that has a Due Date on a date other than
the first day of each month shall be the end of business on August 1, 2003, and
Scheduled Payments due in August 2003 with respect to Mortgage Loans not having
Due Dates on the first of each month have been deemed received on August 1,
2003, not the actual day on which such Scheduled Payments were due.
"DEBT SERVICE COVERAGE RATIO" means, with respect to any
Mortgage Loan, as of any date of determination and for any period, the amount
calculated for such date of determination in accordance with the procedures set
forth in Exhibit T.
"DEBT SERVICE REDUCTION AMOUNT" means, with respect to a Due
Date and the related Determination Date, the amount of the reduction of the
Scheduled Payment which a Mortgagor is obligated to pay on such Due Date with
respect to a Mortgage Loan, the RSA Companion Loan or any B Note as a result of
any proceeding under bankruptcy law or any similar proceeding (other than a
Deficient Valuation Amount); provided, however, that in the case of an amount
that is deferred, but not forgiven, such reduction shall include only the net
present value (calculated at the related Mortgage Rate) of the reduction.
"DEFAULTED MORTGAGE LOAN" means a Mortgage Loan or the RSA
Companion Loan that is in default under the terms of the applicable Mortgage
Loan documentation and for which any applicable grace period has expired.
"DEFEASANCE COLLATERAL" means, with respect to any Defeasance
Loan, the United States Treasury obligations required to be pledged in lieu of
prepayment pursuant to the terms thereof.
"DEFEASANCE LOAN" means any Mortgage Loan, the RSA Companion
Loan or any B Note which requires or permits the related Mortgagor (or permits
the holder of such Mortgage
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Loan, the RSA Companion Loan or any B Note to require the related Mortgagor) to
pledge Defeasance Collateral to such holder in lieu of prepayment.
"DEFECTIVE MORTGAGE LOAN" has the meaning set forth in
Section 2.3(a).
"DEFICIENT VALUATION" means, with respect to any Mortgage Loan
(other than an A Note and the RSA Pari Passu Loan), any A/B Mortgage Loan and
any Loan Pair, a valuation by a court of competent jurisdiction of the Mortgaged
Property (or, with respect to the Xxxx Xxxxxxx Tower Pari Passu Loan or the RSA
Pari Passu Loan, the pro rata portion of the valuation allocable to the Xxxx
Xxxxxxx Tower Pari Passu Loan or the RSA Pari Passu Loan, as applicable)
relating to such Mortgage Loan, A/B Mortgage Loan or Loan Pair in an amount less
than the then outstanding indebtedness under such Mortgage Loan, A/B Mortgage
Loan or Loan Pair, which valuation results from a proceeding initiated under the
United States Bankruptcy Code, as amended from time to time, and that reduces
the amount the Mortgagor is required to pay under such Mortgage Loan, A/B
Mortgage Loan or Loan Pair.
"DEFICIENT VALUATION AMOUNT" means (i) with respect to each
Mortgage Loan (other than an A Note and the RSA Pari Passu Loan), any A/B
Mortgage Loan and any Loan Pair, the amount by which the total amount due with
respect to such Mortgage Loan, A/B Mortgage Loan or Loan Pair (excluding
interest not yet accrued), including the Principal Balance of such Mortgage
Loan, A/B Mortgage Loan or Loan Pair plus any accrued and unpaid interest
thereon and any other amounts recoverable from the Mortgagor with respect
thereto pursuant to the terms thereof, is reduced in connection with a Deficient
Valuation and (ii) with respect to any A Note or the RSA Pari Passu Loan, the
portion of any Deficient Valuation Amount for the related A/B Mortgage Loan or
Loan Pair, as applicable, that is borne by the holder of the A Note or the RSA
Pari Passu Loan, as applicable, under the related Intercreditor Agreement or
Loan Pair Intercreditor Agreement, as applicable.
"DEFINITIVE CERTIFICATES" means Certificates of any Class
issued in definitive, fully registered, certificated form without interest
coupons.
"DELETED MORTGAGE LOAN" means a Mortgage Loan which is
repurchased from the Trust pursuant to the terms hereof or as to which one or
more Qualifying Substitute Mortgage Loans are substituted.
"DEPOSITOR" means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"DEPOSITORY" has the meaning set forth in Section 3.7(a).
"DEPOSITORY AGREEMENT" means the Letter of Representations
dated the Closing Date and by and among the Depositor, the Paying Agent and the
Depository.
"DETERMINATION DATE" means, with respect to any Distribution
Date, the earlier of (i) the 8th day of the month in which such Distribution
Date occurs or, if such day is not a Business Day, the immediately preceding
Business Day, and (ii) the 5th Business Day prior to the related Distribution
Date, commencing September 8, 2003.
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"DIRECTLY OPERATE" means, with respect to any REO Property,
the furnishing or rendering of services to the tenants thereof, the management
of such REO Property, the holding of such REO Property primarily for sale to
customers (other than a sale of an REO Property pursuant to and in accordance
with Section 9.15) or the performance of any construction work thereon, in each
case other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs, tenant improvements or capital expenditures with
respect to such REO Property (including, without limitation, construction
activity to effect repairs or in connection with leasing activity) or undertakes
any ministerial action incidental thereto.
"DISCOUNT RATE" means the rate which, when compounded monthly,
is equivalent to the Treasury Rate when compounded semi-annually. The "Treasury
Rate," unless otherwise set forth in the Mortgage Loan documents, is the yield
calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15--Selected Interest Rates under the heading
"U.S. government securities/Treasury constant maturities" for the week ending
prior to the date of the relevant principal prepayment, of U.S. Treasury
constant maturities with a maturity date (one longer and one shorter) most
nearly approximating the maturity date (or the Anticipated Repayment Date, if
applicable) of the Mortgage Loan prepaid. If Release H.15 is no longer
published, the Master Servicer will select a comparable publication to determine
the Treasury Rate.
"DISQUALIFIED ORGANIZATION" means any of (i) the United
States, any State or any political subdivision thereof, or any agency or
instrumentality of any of the foregoing (other than an instrumentality which is
a corporation if all of its activities are subject to tax and, except for FHLMC,
a majority of its board of directors is not selected by any such governmental
unit), (ii) a foreign government, international organization or any agency or
instrumentality of either of the foregoing, (iii) an organization (except
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from tax imposed by Chapter 1 of the Code (unless such organization is
subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code, and (v) any other Person so designated by the Master
Servicer based upon an Opinion of Counsel that the holding of an ownership
interest in a Residual Certificate by such Person may cause any of the REMICs,
or any Person having an Ownership Interest in any Class of Certificates, other
than such Person, to incur a liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the transfer of an ownership
interest in a Residual Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"DISTRIBUTABLE CERTIFICATE INTEREST" means, with respect to
any Distribution Date and any Class of Certificates (other than the Residual
Certificates) or Interests, the sum of (A) Accrued Certificate Interest in
respect of such Class or Interest, reduced (to not less than zero) by (i) any
Net Aggregate Prepayment Interest Shortfalls for such Class of Certificates or
Interests, allocated on such Distribution Date to such Class or Interest
pursuant to Section 6.7, and (ii) Realized Losses allocated on such Distribution
Date to reduce the Distributable
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Certificate Interest payable to such Class or Interest pursuant to Section 6.6,
plus (B) the Unpaid Interest.
"DISTRIBUTION ACCOUNT" means the Distribution Account
maintained by the Paying Agent on behalf of the Trustee, in accordance with the
provisions of Section 5.3, which account shall be an Eligible Account.
"DISTRIBUTION DATE" means the 13th day of each month or, if
such day is not a Business Day, the next succeeding Business Day, commencing
September 15, 2003.
"DUE DATE" means, with respect to a Mortgage Loan, the RSA
Companion Loan or a B Note, the date on which a Scheduled Payment is due.
"ELIGIBLE ACCOUNT" means an account (or accounts) that is any
of the following: (i) maintained with a depository institution or trust company
whose (A) commercial paper, short-term unsecured debt obligations or other
short-term deposits are rated at least "A-1" by S&P and "P-1" by Moody's, if the
deposits are to be held in the account for 30 days or less, or (B) long-term
unsecured debt obligations are rated at least "AA-" by S&P (or "A" (without
regard to any plus or minus), if the short-term unsecured debt obligations are
rated at least "A-1") and at least "Aa2" by Moody's, if the deposits are to be
held in the account more than 30 days or (ii) a segregated trust account or
accounts maintained in the trust department of the Trustee, the Paying Agent or
other financial institution having a combined capital and surplus of at least
$50,000,000 and subject to regulations regarding fiduciary funds on deposit
similar to Title 12 of the Code of Federal Regulations Section 9.10(b), or (iii)
an account or accounts of a depository institution acceptable to each Rating
Agency, as evidenced by Rating Agency Confirmation with respect to the use of
any such account as the Certificate Account or the Distribution Account.
Notwithstanding anything in the foregoing to the contrary, an account shall not
fail to be an Eligible Account solely because it is maintained with Xxxxx Fargo
Bank, National Association or Xxxxx Fargo Bank Iowa, N.A., each a wholly-owned
subsidiary of Xxxxx Fargo & Co., provided that such subsidiary's or its parent's
(A) commercial paper, short-term unsecured debt obligations or other short-term
deposits are at least "A-1" in the case of S&P, and "P-1" in the case of
Moody's, if the deposits are to be held in the account for 30 days or less, or
(B) long-term unsecured debt obligations are rated at least "AA-" (or "A"
(without regard to any plus or minus), if the short-term unsecured debt
obligations are rated at least "A-1") in the case of S&P and at least "Aa3" in
the case of Moody's, if the deposits are to be held in the account for more than
30 days.
"ELIGIBLE INVESTMENTS" means any one or more of the following
financial assets or other property:
(i) direct obligations of, and obligations fully guaranteed
as to timely payment of principal and interest by, the United States of America,
FNMA, FHLMC or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; provided that any obligation of FNMA or FHLMC, other than an
unsecured senior debt obligation of FNMA or FHLMC, shall be an Eligible
Investment only if Rating Agency Confirmation is obtained with respect to such
investment;
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(ii) demand or time deposits in, unsecured certificates of
deposit of, money market deposit accounts of, or bankers' acceptances issued by,
any depository institution or trust company (including the Trustee, the Master
Servicer, the Special Servicer, the Paying Agent or any Affiliate of the Master
Servicer, the Special Servicer, the Paying Agent or the Trustee, acting in its
commercial capacity) incorporated or organized under the laws of the United
States of America or any State thereof and subject to supervision and
examination by federal or state banking authorities, so long as the commercial
paper or other short-term debt obligations of such depository institution or
trust company are rated "Prime-1" by Moody's and "A-1+" by S&P or the long-term
unsecured debt obligations of such depository institution or trust company have
been assigned a rating by each Rating Agency at least equal "Aa2" by Moody's and
"AA-" by S&P or its equivalent or, in each case, if not rated by a Rating
Agency, then such Rating Agency has issued a Rating Agency Confirmation;
(iii) repurchase agreements or obligations with respect to
any security described in clause (i) above where such security has a remaining
maturity of one year or less and where such repurchase obligation has been
entered into with a depository institution or trust company (acting as
principal) described in clause (ii) above and where such repurchase obligation
will mature prior to the Business Day preceding the next date upon which, as
described in this Agreement, such amounts are required to be withdrawn from the
Certificate Account and which meets the minimum rating requirement for such
entity described above (or for which Rating Agency Confirmation is obtained with
respect to such ratings);
(iv) debt obligations (other than stripped bonds or stripped
coupons) bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States of America or any state
thereof, which securities are rated "AA-" or its equivalent by each Rating
Agency, unless otherwise specified in writing by the Rating Agency; provided
that securities issued by any particular corporation will not be Eligible
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such corporation and
held in the Certificate Account to exceed 5% of the sum of the aggregate
Certificate Principal Balance of the Principal Balance Certificates and the
aggregate principal amount of all Eligible Investments in the Certificate
Account;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof) rated
"Prime-1" by Moody's and "A-1+" by S&P (or for which Rating Agency Confirmation
is obtained with respect to such ratings);
(vi) units of investment funds (including money market
funds) that are rated in the highest long-term category by Moody's, or if not
rated by Moody's then Moody's has issued a Rating Agency Confirmation, and
"AAAm" by S&P;
(vii) guaranteed reinvestment agreements maturing within 365
days or less issued by any bank, insurance company or other corporation whose
long-term unsecured debt rating is not less than "Aa2" by Moody's and "AA-" by
S&P, or for which Rating Agency Confirmation is obtained with respect to such
ratings;
(viii) any money market funds (including those managed or
advised by the Paying Agent or its affiliates) that maintain a constant asset
value and that are rated "AAAm" or "AAAm-G" (or its equivalent rating) by S&P
and "Aaa" (or its equivalent) by Moody's, and any other demand, money-market or
time deposit, or any other obligation, security or investment, with respect to
which Rating Agency Confirmation has been obtained; and
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(ix) such other investments bearing interest or sold at a
discount, earning a return "in the nature of interest" within the meaning of
Treasury Regulation Section 1.860G-2(g)(1)(i) (as evidenced by an Opinion of
Counsel delivered to the Trustee and the Paying Agent by the Master Servicer at
the Master Servicer's expense), as are acceptable to the Rating Agencies (as
evidenced by Rating Agency Confirmation) and treated as "permitted investments"
that are "cash flow investments" under Section 860G(a)(5) of the Code;
provided (A) such investment is held for a temporary period pursuant to Section
1.860G-2(g)(i) of the Treasury Regulations, (B) such investment is payable by
the obligor in U.S. dollars, and (C) that no such instrument shall be an
Eligible Investment (1) if such instrument evidences either (a) a right to
receive only interest payments or only principal payments with respect to the
obligations underlying such instrument or (b) a right to receive both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations, or (2) if it may be redeemed at a price below the
purchase price or (3) if it is not treated as a "permitted investment" that is a
"cash flow investment" under Section 860G(a)(5) of the Code; and provided,
further, that any such instrument shall have a maturity date no later than the
date such instrument is required to be used to satisfy the obligations under
this Agreement, and, in any event, shall not have a maturity in excess of one
year; any such instrument must have a predetermined fixed dollar of principal
due at maturity that cannot vary or change; if rated, the obligation must not
have an "r" highlighter affixed to its rating; interest on any variable rate
instrument shall be tied to a single interest rate index plus a single fixed
spread (if any) and move proportionally with that index; and provided, further,
that no amount beneficially owned by any REMIC Pool (including any amounts
collected by the Master Servicer but not yet deposited in the Certificate
Account) may be invested in investments treated as equity interests for Federal
income tax purposes. No Eligible Investments shall be purchased at a price in
excess of par. For the purpose of this definition, units of investment funds
(including money market funds) shall be deemed to mature daily.
"ENVIRONMENTAL INSURANCE POLICY" shall mean, with respect to
any Mortgage Loan or the related Mortgaged Property or REO Property, any
insurance policy covering pollution conditions and/or other environmental
conditions that is maintained from time to time in respect of such Mortgage
Loan, Mortgaged Property or REO Property, as the case may be, for the benefit
of, among others, the Trustee on behalf of the Certificateholders.
"ENVIRONMENTAL LAWS" means any and all federal, state and
local statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions, now or hereafter in effect, relating to health or the
environment or to emissions, discharges or releases of chemical substances,
including, without limitation, any and all pollutants, contaminants, petroleum
or petroleum products, asbestos or asbestos-containing materials,
polychlorinated biphenyls, urea-formaldehyde insulation, radon, industrial,
toxic or hazardous substances or wastes, into the environment, including,
without limitation, ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use, labeling,
registration, treatment, storage, disposal, transport or handling of any of the
foregoing substances or wastes or the clean-up or other remediation thereof.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ESCROW ACCOUNT" means an account established by or on behalf
of the Master Servicer pursuant to Section 8.3(e).
"ESCROW AMOUNT" means any amount payable with respect to a
Mortgage Loan (including an A/B Mortgage Loan) for taxes, assessments, water
rates, Standard Hazard Insurance Policy premiums, ground lease payments,
reserves for capital improvements, deferred maintenance, repairs, tenant
improvements, leasing commissions, rental achievements, environmental matters
and other reserves or comparable items.
"EUROCLEAR BANK" means Euroclear Bank, S.A./N.V., as operator
of the Euroclear system.
"EVENT OF DEFAULT" has the meaning set forth in
Section 8.28(a).
"EXCESS INTEREST" means, with respect to an ARD Loan if an ARD
Loan is not prepaid in full on or before its Anticipated Repayment Date, the
excess, if any of (i) interest accrued at the rate of interest applicable to
such Mortgage Loan after such Anticipated Repayment Date (plus any interest on
such interest as may be provided for under the Mortgage Loan documents) over
(ii) interest accrued at the rate of interest applicable to such Mortgage Loan
before such Anticipated Repayment Date. Excess Interest on an ARD Loan is an
asset of the Trust, but shall not be an asset of any REMIC Pool formed
hereunder.
"EXCESS INTEREST SUB-ACCOUNT" means an administrative account
deemed to be a sub-account of the Distribution Account. The Excess Interest
Sub-account shall not be an asset of any REMIC Pool formed hereunder.
"EXCESS LIQUIDATION PROCEEDS" means, with respect to any
Mortgage Loan, the excess of (i) Liquidation Proceeds of a Mortgage Loan or
related REO Property, over (ii) the amount that would have been received if a
Principal Prepayment in full had been made with respect to such Mortgage Loan
(or, in the case of an REO Property related to an A/B Mortgage Loan, a Principal
Prepayment in full had been made with respect to both the related A Note and B
Note, or, in the case of an REO Property related to a Loan Pair, a Principal
Prepayment in full had been made with respect to both the RSA Pari Passu Loan
and the RSA Companion Loan) on the date such proceeds were received.
"EXCESS SERVICING FEE" means, with respect to the Mortgage
Loans or the RSA Companion Loan for which an "excess servicing fee rate" is
designated on the Mortgage Loan Schedule, the monthly fee payable to Xxxxx Fargo
Bank, National Association or its successors and assigns, as holder of excess
servicing rights, which fee shall accrue on the Scheduled Principal Balance of
each such Mortgage Loan immediately prior to the Due Date occurring in each
month at the per annum rate (determined in the same manner as the applicable
Mortgage Rate for such Mortgage Loan is determined for such month) specified on
the Mortgage Loan Schedule (the "Excess Servicing Fee Rate"). The holder of
excess servicing rights is entitled to Excess Servicing Fees only with respect
to the Mortgage Loans as indicated on Exhibit J hereto.
"EXCHANGE ACT" has the meaning set forth in Section 8.26(a).
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"EXCHANGE CERTIFICATION" means an Exchange Certification
substantially in the form set forth in Exhibit H hereto executed by a holder of
an interest in a Regulation S Global Certificate or a Rule 144A-IAI Global
Certificate, as applicable.
"EXEMPTION" means each of the individual prohibited
transaction exemptions granted by the United States Department of Labor to the
Underwriters, as amended.
"EXPENSE LOSS" means a loss realized upon payment by the Trust
of an Additional Trust Expense.
"EXTENSION" has the meaning set forth in Section 9.15(a).
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"FHLMC AUDIT PROGRAM" has the meaning set forth in
Section 8.13.
"FINAL CERTIFICATION" has the meaning set forth in
Section 2.2.
"FINAL JUDICIAL DETERMINATION" has the meaning set forth in
Section 2.3(a).
"FINAL PROSPECTUS SUPPLEMENT" has the meaning set forth in the
Preliminary Statement hereto.
"FINAL RECOVERY DETERMINATION" means a determination with
respect to any Mortgage Loan, B Note, Specially Serviced Mortgage Loan or the
RSA Companion Loan by the Special Servicer in consultation with the Operating
Adviser and the Master Servicer (including a Mortgage Loan, the RSA Companion
Loan or a B Note that became an REO Property), in each case, in its good faith
discretion, consistent with the Servicing Standard, that all Insurance Proceeds,
Condemnation Proceeds, Liquidation Proceeds, Purchase Proceeds and other
payments or recoveries that the Special Servicer expects to be finally
recoverable on such Mortgage Loan, the RSA Companion Loan or such B Note,
without regard to any obligation of the Master Servicer, the Special Servicer,
the Trustee or the Fiscal Agent, as the case may be, to make payments from its
own funds pursuant to Article IV hereof, have been recovered. The Special
Servicer shall be required to provide the Master Servicer with prompt written
notice of any Final Recovery Determination with respect to any Specially
Serviced Mortgage Loan upon making such determination. The Master Servicer shall
notify the Trustee and the Paying Agent of such determination and the Paying
Agent shall deliver a copy of such notice to each Rating Agency.
"FINAL SCHEDULED DISTRIBUTION DATE" means, for each Class of
rated Certificates, the Distribution Date on which such Class would be paid in
full if payments were made on the Mortgage Loans in accordance with their terms,
except that ARD Loans are assumed to be repaid on their Anticipated Repayment
Dates.
"FISCAL AGENT" means ABN AMRO Bank N.V., a banking association
organized under the laws of the Netherlands and its permitted successors and
assigns.
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"FISCAL AGENT TERMINATION EVENT" has the meaning set forth in
Section 4.7.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"GLOBAL CERTIFICATE" means any Rule 144A-IAI Global
Certificate, Regulation S Temporary Global Certificate or Regulation S Permanent
Global Certificate.
"HOLDER" means the Person in whose name a Certificate is
registered on the Certificate Register.
"IAI DEFINITIVE CERTIFICATE" means, with respect to any Class
of Certificates sold to Institutional Accredited Investors who are not Qualified
Institutional Buyers, a Certificate in definitive, fully registered certificated
form without interest coupons.
"INDEPENDENT" means, when used with respect to any
Accountants, a Person who is "independent" within the meaning of Rule 2-01(B) of
the Securities and Exchange Commission's Regulation S-X. Independent means, when
used with respect to any other Person, a Person who (A) is in fact independent
of another specified Person and any Affiliate of such other Person, (B) does not
have any material direct or indirect financial interest in such other Person or
any Affiliate of such other Person, (C) is not connected with such other Person
or any Affiliate of such other Person as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions
and (D) is not a member of the immediate family of a Person defined in clause
(B) or (C) above.
"INDEPENDENT CONTRACTOR" means, either (i) with respect to any
Mortgage Loan (A) that is not a Specially Serviced Mortgage Loan, any Person
designated by the Master Servicer (other than the Master Servicer, but which may
be an Affiliate of the Master Servicer), or (B) that is a Specially Serviced
Mortgage Loan, any Person designated by the Special Servicer that would be an
"independent contractor" with respect to a REMIC within the meaning of Section
856(d)(3) of the Code if such REMIC were a real estate investment trust (except
that the ownership test set forth in such Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of the Aggregate
Certificate Balance or Notional Amount, as the case may be, of any Class of the
Certificates (other than the Class R-III Certificates), a Percentage Interest of
35% or more in the Class R-III Certificates or such other interest in any Class
of the Certificates or of the applicable REMIC as is set forth in an Opinion of
Counsel, which shall be at no expense to the Trustee or the Trust) so long as
such REMIC does not receive or derive any income from such Person and provided
that the relationship between such Person and such REMIC is at arm's length, all
within the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Master Servicer or the Special Servicer) upon
receipt by the Trustee of an Opinion of Counsel, which shall be at the expense
of the Person delivering such opinion to the Trustee, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a) of the Code), or cause any income realized in respect of such
REO Property to fail to qualify as Rents from Real Property.
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"INITIAL CERTIFICATION" has the meaning set forth in
Section 2.2.
"INITIAL DEPOSIT" means the amount of all collections made on
the Mortgage Loans from the Cut-Off Date to and excluding the Closing Date.
"INITIAL REVIEW PERIOD" has the meaning set forth in
Section 9.4(d).
"INSPECTION REPORT" means the report delivered by the Master
Servicer or the Special Servicer, as the case may be, substantially in the form
of Exhibit L hereto.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
accredited investor qualifying pursuant to Rule 501(a)(1), (2), (3) or (7) of
Regulation D of the 1933 Act.
"INSURED ENVIRONMENTAL EVENT" has the meaning set forth in
Section 9.1(f).
"INSURANCE POLICIES" means, collectively, any Standard Hazard
Insurance Policy, flood insurance policy, title insurance policy, terrorism
insurance policy or Environmental Insurance Policy relating to the Mortgage
Loans or the Mortgaged Properties in effect as of the Closing Date or thereafter
during the term of this Agreement.
"INSURANCE PROCEEDS" means amounts paid by the insurer under
any Insurance Policy, other than amounts required to be paid over to the
Mortgagor pursuant to law, the related Mortgage Loan, the RSA Companion Loan,
the related B Note or the Servicing Standard and with respect to the Mortgaged
Property securing the Xxxx Xxxxxxx Tower Companion Loans and the Xxxx Xxxxxxx
Tower Pari Passu Loan, any portion of such amounts payable to the holder of the
Xxxx Xxxxxxx Tower Pari Passu Loan.
"INTERCREDITOR AGREEMENT" means, with respect to an A/B
Mortgage Loan, the related intercreditor agreement by and between the holder of
the related A Note and the holder of the related B Note relating to the relative
rights of such holders of the respective A Note and B Note, as the same may be
further amended from time to time in accordance with the terms thereof. There
are no A/B Mortgage Loans related to the Trust (and therefore no Intercreditor
Agreements in connection therewith).
"INTEREST" means a REMIC I Interest or a REMIC II Interest, as
applicable.
"INTEREST ACCRUAL PERIOD" means, for any Distribution Date,
with respect to all Classes of Certificates and Interests (other than the
Residual Certificates), the period beginning on the first day of the month
preceding the month in which such Distribution Date occurs and ending on the
last day of the month preceding the month in which such Distribution Date
occurs.
"INTEREST RESERVE ACCOUNT" means that Interest Reserve Account
maintained by the Master Servicer pursuant to Section 5.1(a), which account
shall be an Eligible Account.
"INTEREST RESERVE AMOUNT" has the meaning set forth in Section
5.1(d).
"INTEREST RESERVE LOANS" shall mean the Mortgage Loans which
bear interest other than on the basis of a 360-day year consisting of twelve
(12) 30-day months.
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"INTERESTED PERSON" means, as of any date of determination,
the Master Servicer, the Special Servicer, the Depositor, the holder of any
related Junior Indebtedness (with respect to any particular Mortgage Loan), a
holder of 50% or more of the Controlling Class, the Operating Adviser, any
Independent Contractor engaged by the Master Servicer or the Special Servicer
pursuant to this Agreement, or any Person actually known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"XXXX XXXXXXX TOWER COMPANION LOANS" means the two notes
secured by the Xxxx Xxxxxxx Tower Pari Passu Mortgage on a pari passu basis with
the Xxxx Xxxxxxx Tower Pari Passu Loan and which are not included in the Trust.
Neither of the Xxxx Xxxxxxx Tower Companion Loans is a "Mortgage Loan." As of
the date hereof, one of the Xxxx Xxxxxxx Tower Companion Loans is included in a
trust fund created in connection with the issuance of the LB-UBS Commercial
Mortgage Trust 2003-C5, Commercial Mortgage Pass-Through Certificates, Series
2003-C5 and the other Xxxx Xxxxxxx Tower Companion Loan is held by Xxxxxx
Xxxxxxx Mortgage Capital Inc.
"XXXX XXXXXXX TOWER INTERCREDITOR AGREEMENT" means, with
respect to Mortgage Loan No. 1, that certain intercreditor agreement, dated July
9, 2003, by and between the holders of the Xxxx Xxxxxxx Tower Pari Passu Loan,
the Xxxx Xxxxxxx Tower Companion Loans and the holders of the two related
subordinated notes relating to the relative rights of such holders, as the same
may be amended from time to time in accordance with the terms thereof.
"XXXX XXXXXXX TOWER PARI PASSU LOAN" means the Mortgage Loan
designated as Mortgage Loan No. 1 on the Mortgage Loan Schedule and which is
secured on a pari passu basis with the Xxxx Xxxxxxx Tower Companion Loans and
with any other note secured by the related Mortgaged Property pursuant to the
Xxxx Xxxxxxx Tower Pari Passu Mortgage. The Xxxx Xxxxxxx Tower Pari Passu Loan
is a "Mortgage Loan."
"XXXX XXXXXXX TOWER PARI PASSU MORTGAGE" means the Mortgage
securing the Xxxx Xxxxxxx Tower Companion Loans and the Xxxx Xxxxxxx Tower Pari
Passu Loan and any other note secured by the related Mortgaged Property.
"JUNIOR INDEBTEDNESS" means any indebtedness of any Mortgagor
that is secured by a lien that is junior in right of payment to the lien of the
Mortgage securing the related Mortgage Note.
"LATE COLLECTIONS" means, with respect to any Mortgage Loan,
the RSA Companion Loan or any B Note, all amounts received during any Collection
Period, whether as late payments or as Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds, Purchase Proceeds or otherwise, that represent payments
or collections of Scheduled Payments due but delinquent for a previous
Collection Period and not previously recovered.
"LATE FEES" means a fee payable to the Master Servicer or the
Special Servicer, as the case may be, to the extent actually collected from the
Mortgagor as provided in the related Mortgage Loan or the related B Note in
connection with a late payment made by such Mortgagor.
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"LB-UBS SERIES 2003-C5 DEPOSITOR" means the "depositor" under
the LB-UBS Series 2003-C5 Pooling and Servicing Agreement, which as of the date
hereof is Structured Asset Securities Corporation II.
"LB-UBS SERIES 2003-C5 FISCAL AGENT" means the "fiscal agent"
under the LB-UBS Series 2003-C5 Pooling and Servicing Agreement, which as of the
date hereof is ABN AMRO Bank N.V.
"LB-UBS SERIES 2003-C5 MASTER SERVICER" means the "master
servicer" under the LB-UBS Series 2003-C5 Pooling and Servicing Agreement, which
as of the date hereof is Wachovia Bank, National Association.
"LB-UBS SERIES 2003-C5 POOLING AND SERVICING AGREEMENT" means
the pooling and servicing agreement dated as of July 11, 2003 by and between the
LB-UBS Series 2003-C5 Depositor, the LB-UBS Series 2003-C5 Master Servicer, the
LB-UBS Series 2003-C5 Special Servicer, the LB-UBS Series 2003-C5 Trustee and
the LB-UBS Series 2003-C5 Fiscal Agent, pursuant to which the LB-UBS Series
2003-C5 Trust issued its Commercial Mortgage Pass-Through Certificates, Series
LB-UBS Series 2003-C5.
"LB-UBS SERIES 2003-C5 SPECIAL SERVICER" means the "special
servicer" under the LB-UBS Series 2003-C5 Pooling and Servicing Agreement, which
as of the date hereof is Lennar Partners, Inc.
"LB-UBS SERIES 2003-C5 TRUST" means the trust established
pursuant to the LB-UBS Series 2003-C5 Pooling and Servicing Agreement.
"LB-UBS SERIES 2003-C5 TRUSTEE" means the "trustee" under the
LB-UBS Series 2003-C5 Pooling and Servicing Agreement, which as of the date
hereof is LaSalle Bank National Association.
"LIQUIDATION EXPENSES" means reasonable and direct expenses
incurred by the Special Servicer on behalf of the Trust in connection with the
liquidation of any Specially Serviced Mortgage Loan or REO Property acquired in
respect thereof including, without limitation, reasonable legal fees and
expenses in connection with a closing, brokerage commissions and conveyance
taxes for such Specially Serviced Mortgage Loan. All Liquidation Expenses
relating to disposition of the Specially Serviced Mortgage Loan shall be (i)
paid out of income from the related REO Property, to the extent available, (ii)
paid out of related proceeds from liquidation or (iii) advanced by the Master
Servicer or the Special Servicer, subject to Section 4.4 and Section 4.6(e)
hereof, as a Servicing Advance.
"LIQUIDATION FEE" means a fee equal to the product of (x) 1.0%
and (y) the Liquidation Proceeds received in connection with a final disposition
of a Specially Serviced Mortgage Loan or REO Property and any Condemnation
Proceeds and Insurance Proceeds received by the Trust (net of any expenses
incurred by the Special Servicer on behalf of the Trust in connection with the
collection of such Condemnation Proceeds and Insurance Proceeds other than
Liquidation Proceeds received in connection with the Xxxx Xxxxxxx Tower Pari
Passu Loan).
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"LIQUIDATION PROCEEDS" means proceeds from the sale or
liquidation (provided that for the purposes of calculating Liquidation Fees
hereunder, Liquidation Proceeds shall not include any proceeds from a repurchase
of a Mortgage Loan by a Seller due to a Material Breach of a representation or
warranty or Material Document Defect) of a Mortgage Loan, the RSA Companion Loan
or a B Note or related REO Property, net of Liquidation Expenses and any related
Advances and interest thereon (to the extent not otherwise paid pursuant to
Section 4.6(c)) and with respect to the sale or liquidation of any REO Property
related to the Xxxx Xxxxxxx Tower Companion Loans and the Xxxx Xxxxxxx Tower
Pari Passu Loan, any portion of such amounts allocable to the Xxxx Xxxxxxx Tower
Pari Passu Loan.
"LIQUIDATION REALIZED LOSS" means, with respect to each
Mortgage Loan or REO Property, as the case may be, as to which a Cash
Liquidation or REO Disposition has occurred, an amount equal to the sum, without
duplication, of (A) the Principal Balance of the Mortgage Loan (or deemed
Principal Balance, in the case of an REO Mortgage Loan) as of the date of the
Cash Liquidation or REO Disposition, plus (B) unpaid interest and interest
accrued thereon at the applicable Mortgage Rate, plus (C) any expenses incurred
in connection with such Mortgage Loan that are reimbursable to any Person, other
than amounts previously treated as Expense Losses or included in the definition
of Liquidation Expenses and interest thereon minus the sum of (i) REO Income
applied as recoveries of principal or interest on the related Mortgage Loan or
REO Property, and (ii) Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds, Late Collections and all other amounts recovered from the related
Mortgagor and received during the Collection Period in which such Cash
Liquidation or REO Disposition occurred and which are not required under any
Intercreditor Agreement, Loan Pair Intercreditor Agreement or Xxxx Xxxxxxx Tower
Intercreditor Agreement to be payable or reimbursable to any holder of a B Note
or Companion Loan. REO Income, Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds shall be applied first against any Expense Losses (to the
extent not included in the definition of Liquidation Expenses) for such Mortgage
Loan, the unpaid interest on the Mortgage Loan, calculated as described in
clause (B) above, and then against the Principal Balance of such Mortgage Loan,
calculated as described in clause (A) above.
"LOAN PAIR" means the RSA Pari Passu Loan and the RSA
Companion Loan, collectively.
"LOAN PAIR INTERCREDITOR AGREEMENT" means, with respect to a
Loan Pair, the related intercreditor agreement by and between the holders of the
RSA Pari Passu Loan and the RSA Companion Loan relating to the relative rights
of such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"LOAN-TO-VALUE RATIO" means, as of any date with respect to a
Mortgage Loan, the fraction, expressed as a percentage, the numerator of which
is the Principal Balance of such Mortgage Loan at the date of determination and
the denominator of which is the value of the Mortgaged Property as shown on the
most recent Appraisal or valuation of the Mortgaged Property which is available
as of such date or, in the case of the Xxxx Xxxxxxx Tower Pari Passu Loan or the
Loan Pair, the allocable portion thereof.
"LOCK-BOX ACCOUNT" has the meaning set forth in
Section 8.3(g).
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"LOCK-BOX AGREEMENT" means, with respect to any Mortgage Loan,
any lock-box agreement relating to such Mortgage Loan among the related
Mortgagor, a depositary institution and the Master Servicer (or a Primary
Servicer or Sub-Servicer on its behalf) pursuant to which a Lock-Box Account is
created.
"LOSSES" has the meaning set forth in Section 12.4.
"LUXEMBOURG PAYING AGENT" has the meaning set forth in
Section 7.18.
"LUXEMBOURG TRANSFER AGENT" has the meaning set forth in
Section 7.18.
"MAI" means Member of the Appraisal Institute.
"MASTER SERVICER" means Xxxxx Fargo Bank, National Association
and its permitted successors or assigns.
"MASTER SERVICER CONSENT MATTERS" has the meaning set forth in
Section 8.3(a).
"MASTER SERVICER INDEMNIFIED PARTIES" has the meaning set
forth in Section 8.25(a).
"MASTER SERVICER LOSSES" has the meaning set forth in
Section 8.25(a).
"MASTER SERVICER REMITTANCE DATE" means, for each Distribution
Date, the Business Day immediately preceding such Distribution Date.
"MASTER SERVICER REMITTANCE REPORT" means a report prepared by
the Master Servicer and in such media as may be agreed upon by the Master
Servicer and the Paying Agent containing such information regarding the Mortgage
Loans as will permit the Paying Agent to calculate the amounts to be distributed
to the Certificateholders pursuant to this Agreement and to furnish the Monthly
Certificateholders Report to Certificateholders required to be delivered
hereunder and containing such additional information as the Master Servicer, the
Paying Agent and the Depositor may from time to time mutually agree.
"MASTER SERVICING FEE" means for each calendar month, as to
each Mortgage Loan, the RSA Companion Loan and each B Note (including REO
Mortgage Loans and Defeasance Loans) but not as to the Xxxx Xxxxxxx Tower Pari
Passu Loan (as to which there is no Master Servicing Fee payable to the Master
Servicer under this Trust), an amount equal to the Master Servicing Fee Rate
applicable to such month (determined in the same manner (other than the rate of
accrual) as the applicable Mortgage Rate is determined for such Mortgage Loan,
RSA Companion Loan or B Note for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan, RSA Companion Loan or B Note
immediately before the Due Date occurring in such month, subject to reduction in
respect of Compensating Interest, as set forth in Section 8.10(c).
"MASTER SERVICING FEE RATE" means, with respect to each
Mortgage Loan (other than the Xxxx Xxxxxxx Tower Pari Passu Loan), the RSA
Companion Loan and any B Note (including any Mortgage Loan relating to an REO
Property), the rate per annum specified as such on the Mortgage Loan Schedule.
With respect to the Xxxx Xxxxxxx Tower Pari Passu Loan,
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no Master Servicing Fee Rate is charged by the Master Servicer, but the Pari
Passu Loan Servicing Fee Rate is charged by the LB-UBS Series 2003-C5 Master
Servicer pursuant to the LB-UBS Series 2003-C5 Pooling and Servicing Agreement.
"MATERIAL BREACH" has the meaning set forth in Section 2.3(a).
"MATERIAL DOCUMENT DEFECT" has the meaning set forth in
Section 2.3(a).
"MATURITY DATE" means, with respect to any Mortgage Loan, the
RSA Companion Loan or any B Note as of any date of determination, the date on
which the last payment of principal is due and payable under the related
Mortgage Loan, the RSA Companion Loan or B Note, after taking into account all
Principal Prepayments received and any Deficient Valuation, Debt Service
Reduction Amount or modification of the Mortgage Loan, the RSA Companion Loan or
B Note occurring prior to such date of determination, but without giving effect
to (i) any acceleration of the principal of such Mortgage Loan, the RSA
Companion Loan or B Note or (ii) any grace period permitted by the related
Mortgage Loan, the related B Note or the RSA Companion Loan.
"MODIFICATION FEE" means a fee, if any, collected from a
Mortgagor by the Master Servicer in connection with a modification of any
Mortgage Loan, the RSA Companion Loan or any B Note other than a Specially
Serviced Mortgage Loan or collected in connection with a modification by the
Special Servicer of a Specially Serviced Mortgage Loan.
"MODIFICATION LOSS" means, with respect to each Mortgage Loan,
(i) a decrease in the Principal Balance of such Mortgage Loan as a result of a
modification thereof in accordance with the terms hereof, (ii) any expenses
connected with such modification, to the extent (x) reimbursable to the Trustee,
the Special Servicer or the Master Servicer and (y) not recovered from the
Mortgagor or (iii) in the case of a modification of such Mortgage Loan that
reduces the Mortgage Rate thereof, the excess, on each Due Date, of the amount
of interest that would have accrued at a rate equal to the original Mortgage
Rate, over interest that actually accrued on such Mortgage Loan during the
preceding Collection Period.
"MONEY TERM" means with respect to any Mortgage Loan, the RSA
Companion Loan or any B Note, the Maturity Date, Mortgage Rate, Principal
Balance, amortization term or payment frequency thereof or any provision thereof
requiring the payment of a prepayment premium, yield maintenance charge or
percentage premium in connection with a principal prepayment (and shall not
include late fees or default interest provisions).
"MONTHLY CERTIFICATEHOLDERS REPORT" means a report provided
pursuant to Section 5.4 by the Paying Agent monthly as of the related
Determination Date generally in the form and substance of Exhibit M, which sets
forth, to the extent applicable: (i) the amount, if any, of such distributions
to the holders of each Class of Principal Balance Certificates applied to reduce
the respective Certificate Balances thereof; (ii) the amount of such
distribution to holders of each Class of Certificates allocable to (A) interest
accrued at the respective Pass-Through Rates, less any Net Aggregate Prepayment
Interest Shortfalls and (B) Prepayment Premiums; (iii) the number of outstanding
Mortgage Loans and the aggregate Principal Balance and Scheduled Principal
Balance of the Mortgage Loans at the close of business on such Determination
Date; (iv) the number and aggregate Scheduled Principal Balance of Mortgage
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Loans (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90 or
more days, (D) as to which foreclosure proceedings have been commenced, or (E)
as to which bankruptcy proceedings have been commenced; (v) with respect to any
REO Property included in the Trust, the Principal Balance of the related
Mortgage Loan as of the date of acquisition of the REO Property and the
Scheduled Principal Balance thereof; (vi) as of the related Determination Date
(A) as to any REO Property sold during the related Collection Period, the date
of the related determination by the Special Servicer that it has recovered all
payments which it expects to be finally recoverable and the amount of the
proceeds of such sale deposited into the Certificate Account, and (B) the
aggregate amount of other revenues collected by the Special Servicer with
respect to each REO Property during the related Collection Period and credited
to the Certificate Account, in each case identifying such REO Property by the
loan number of the related Mortgage Loan; (vii) the Aggregate Certificate
Balance or Notional Amount, as the case may be, of each Class of Certificates
before and after giving effect to the distribution made on such Distribution
Date; (viii) the aggregate amount of Principal Prepayments made during the
related Collection Period; (ix) the Pass-Through Rate applicable to each Class
of Certificates for such Distribution Date; (x) the aggregate amount of the
Master Servicing Fee, the Primary Servicing Fee, the Special Servicing Fee, the
Excess Servicing Fees and the fees paid to the LB-UBS Series 2003-C5 Master
Servicer and the LB-UBS Series 2003-C5 Special Servicer solely as such fees
relate to the Xxxx Xxxxxxx Tower Pari Passu Loan; (xi) the amount of Unpaid
Interest and Realized Losses, if any, incurred with respect to the Mortgage
Loans, including a breakout by type of such Realized Losses; (xii) the aggregate
amount of Servicing Advances and P&I Advances outstanding separately stated that
have been made by the Master Servicer, the Special Servicer, the Trustee and the
Fiscal Agent and the aggregate amount of Servicing Advances and P&I Advances
made by the LB-UBS Series 2003-C5 Master Servicer in respect of the Xxxx Xxxxxxx
Tower Pari Passu Loan and the Xxxx Xxxxxxx Tower Companion Loans and (xiii) the
amount of any Appraisal Reductions effected during the related Collection Period
on a loan-by-loan basis and the total Appraisal Reductions in effect as of such
Distribution Date (and in the case of the Xxxx Xxxxxxx Tower Pari Passu Loan,
the amount of any appraisal reductions effected under the LB-UBS Series 2003-C5
Pooling and Servicing Agreement). In the case of information furnished pursuant
to subclauses (i), (ii) and (xi) above, the amounts shall be expressed in the
aggregate and as a dollar amount per $1,000 of original principal amount of the
Certificates for all Certificates of each applicable Class.
"MOODY'S" means Xxxxx'x Investors Service Inc. or its
successor in interest.
"MORTGAGE" means the mortgage, deed of trust or other
instrument securing a Mortgage Note.
"MORTGAGE FILE" means the mortgage documents listed below:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed in blank or endorsed "Pay to the order of LaSalle Bank
National Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial
Mortgage Pass-Through Certificates, Series 2003-TOP11, without recourse,
representation or warranty" or if the original Mortgage Note is not included
therein, then a lost note affidavit with a copy of the Mortgage Note attached
thereto;
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(ii) the original Mortgage, with evidence of recording
thereon, and, if the Mortgage was executed pursuant to a power of attorney, a
certified true copy of the power of attorney certified by the public recorder's
office, with evidence of recording thereon (if recording is customary in the
jurisdiction in which such power of attorney was executed) or certified by a
title insurance company or escrow company to be a true copy thereof; provided
that if such original Mortgage cannot be delivered with evidence of recording
thereon on or prior to the 45th day following the Closing Date because of a
delay caused by the public recording office where such original Mortgage has
been delivered for recordation or because such original Mortgage has been lost,
the Depositor shall deliver or cause to be delivered to the Trustee a true and
correct copy of such Mortgage, together with (A) in the case of a delay caused
by the public recording office, an Officer's Certificate of the applicable
Seller stating that such original Mortgage has been sent to the appropriate
public recording official for recordation or (B) in the case of an original
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such Mortgage is recorded that such
copy is a true and complete copy of the original recorded Mortgage;
(iii) the originals of all agreements modifying a Money
Term or other material modification, consolidation and extension agreements, if
any, with evidence of recording thereon (which are reflected in the Mortgage
Loan Schedule), or if such original modification, consolidation and extension
agreements have been delivered to the appropriate recording office for
recordation and either have not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or have been
lost after recordation, true copies of such modifications, consolidations and
extensions certified by the applicable Seller together with (A) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
applicable Seller stating that such original modification, consolidation or
extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (B) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(iv) an original Assignment of Mortgage for each Mortgage
Loan, in form and substance acceptable for recording, signed by the holder of
record in blank or in favor of "LaSalle Bank National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2003-TOP11;"
(v) originals of all intervening assignments of Mortgage,
if any, with evidence of recording thereon or, if such original assignments of
Mortgage have been delivered to the appropriate recorder's office for
recordation, certified true copies of such assignments of Mortgage certified by
the applicable Seller, or in the case of an original blanket intervening
assignment of Mortgage retained by the applicable Seller, a copy thereof
certified by the applicable Seller or, if any original intervening assignment of
Mortgage has not yet been returned on or prior to the 45th day following the
Closing Date from the applicable recording office or has been lost, a true and
correct copy thereof, together with (A) in the case of a delay caused by the
public recording office, an Officer's Certificate of the applicable Seller
stating that such original intervening assignment of Mortgage has been sent to
the appropriate public recording official for recordation or (B) in the case of
an original intervening assignment of
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Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(vi) if the related Assignment of Leases is separate from
the Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or, if such Assignment of Leases has not been returned on or
prior to the 45th day following the Closing Date from the applicable public
recording office, a copy of such Assignment of Leases certified by the
applicable Seller to be a true and complete copy of the original Assignment of
Leases submitted for recording, together with (A) an original of each assignment
of such Assignment of Leases with evidence of recording thereon and showing a
complete recorded chain of assignment from the named assignee to the holder of
record, and if any such assignment of such Assignment of Leases has not been
returned from the applicable public recording office, a copy of such assignment
certified by the applicable Seller to be a true and complete copy of the
original assignment submitted for recording, and (B) an original assignment of
such Assignment of Leases, in recordable form, signed by the holder of record in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2003-TOP11," which assignment may be effected in the related Assignment of
Mortgage;
(vii) the original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(viii) the original Title Insurance Policy or in the event
such original Title Insurance Policy has not been issued, an original binder or
actual title commitment or a copy thereof certified by the title company with
the original Title Insurance Policy to follow within 180 days of the Closing
Date or a preliminary title report with an original Title Insurance Policy to
follow within 180 days of the Closing Date;
(ix) (A) UCC financing statements (together with all
assignments thereof) and (B) UCC-2 or UCC-3 financing statements to the Trustee
duly authorized and executed and delivered in connection with the Mortgage Loan;
(x) copies of the related ground lease(s), if any,
related to any Mortgage Loan where the Mortgagor is the lessee under such ground
lease and there is a lien in favor of the mortgagee in such lease;
(xi) copies of any loan agreements, lock-box agreements
and intercreditor agreements (including, without limitation, the Intercreditor
Agreement, the Xxxx Xxxxxxx Tower Intercreditor Agreement and the Loan Pair
Intercreditor Agreement, and a copy (that is, not the original) of the mortgage
note evidencing the RSA Companion Loan and B Note) related to any Mortgage Loan;
(xii) either (A) the original of each letter of credit, if
any, constituting additional collateral for such Mortgage Loan, which shall be
assigned and delivered to the Trustee on behalf of the Trust with a copy to be
held by the applicable Primary Servicer (or the Master Servicer), and applied,
drawn, reduced or released in accordance with documents evidencing or securing
the applicable Mortgage Loan, this Agreement and the applicable
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Primary Servicing Agreement or (B) the original of each letter of credit, if
any, constituting additional collateral for such Mortgage Loan, which shall be
held by the applicable Primary Servicer (or the Master Servicer) on behalf of
the Trustee, with a copy to be held by the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, this Agreement and the applicable Primary Servicing Agreement (it
being understood that each Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before the Closing
Date, the bank issuing the letter of credit that the letter of credit and the
proceeds thereof belong to the Trust, and to use reasonable efforts to obtain
within 30 days (but in any event to obtain within 90 days) following the Closing
Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the Trust for
any liabilities, charges, costs, fees or other expenses accruing from the
failure of the Seller to assign the letter of credit hereunder). In the case of
clause (B) above, each Primary Servicer (and the Master Servicer) acknowledges
that any letter of credit held by it shall be held in its capacity as agent of
the Trust, and if a Primary Servicer (or Master Servicer) sells its rights to
service the applicable Mortgage Loan, the applicable Primary Servicer (or Master
Servicer) will assign the applicable letter of credit to the Trust or at the
direction of the Special Servicer to such party as the Special Servicer may
instruct, in each case, at the expense of the Primary Servicer (or Master
Servicer). The Primary Servicer (or Master Servicer) shall indemnify the Trust
for any loss caused by the ineffectiveness of such assignment;
(xiii) the original environmental indemnity agreement, if any,
related to any Mortgage Loan;
(xiv) third-party management agreements for all hotels and
for such other Mortgaged Properties securing Mortgage Loans with a Cut-Off Date
Principal Balance equal to or greater than $20,000,000;
(xv) any Environmental Insurance Policy;
(xvi) any affidavit and indemnification agreement; and
(xvii) with respect to the Xxxx Xxxxxxx Tower Pari Passu
Loan, a copy of the LB-UBS Series 2003-C5 Pooling and Servicing Agreement.
With respect to the Xxxx Xxxxxxx Tower Pari Passu Loan, the
preceding document delivery requirements will be met by the delivery by the
Depositor of copies of the documents specified above (other than the Mortgage
Notes (and all intervening endorsements) respectively evidencing the Xxxx
Xxxxxxx Tower Pari Passu Loan with respect to which the originals shall be
required), including a copy of the Xxxx Xxxxxxx Tower Pari Passu Mortgage.
"MORTGAGE LOAN" means a Mortgage Note secured by a Mortgage,
and all amendments and modifications thereof, identified on the Mortgage Loan
Schedule, as amended from time to time, and Mortgage Loan shall also include any
Defeasance Loan and the Xxxx Xxxxxxx Tower Pari Passu Loan (but shall not
include any Xxxx Xxxxxxx Tower Companion Loan) but with respect to (i) any A/B
Mortgage Loan, shall include the A Note (but shall not include the related B
Note) and (ii) the Loan Pair, shall include the RSA Pari Passu Loan (but shall
not include the RSA Companion Loan).
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"MORTGAGE LOAN PURCHASE AGREEMENT" means Mortgage Loan
Purchase Agreement I, Mortgage Loan Purchase Agreement II, Mortgage Loan
Purchase Agreement III or Mortgage Loan Purchase Agreement IV, as the case may
be.
"MORTGAGE LOAN PURCHASE AGREEMENT I" means that certain
Mortgage Loan Purchase Agreement between BSCMI and the Depositor dated as of
August 6, 2003 with respect to the BSCMI Loans, a form of which is attached
hereto as Exhibit K-1.
"MORTGAGE LOAN PURCHASE AGREEMENT II" means that certain
Mortgage Loan Purchase Agreement between Xxxxx Fargo and the Depositor dated as
of August 6, 2003 with respect to the Xxxxx Fargo Loans, a form of which is
attached hereto as Exhibit K-2.
"MORTGAGE LOAN PURCHASE AGREEMENT III" means that certain
Mortgage Loan Purchase Agreement between Principal and the Depositor dated as of
August 6, 2003 with respect to the Principal Loans, a form of which is attached
hereto as Exhibit K-3.
"MORTGAGE LOAN PURCHASE AGREEMENT IV" means that certain
Mortgage Loan Purchase Agreement between MSMC and the Depositor dated as of
August 6, 2003 with respect to the MSMC Loans, a form of which is attached
hereto as Exhibit K-4.
"MORTGAGE LOAN SCHEDULE" or "LOAN SCHEDULE" means collectively
the schedule attached hereto as Schedule I, which identifies each BSCMI Loan,
the schedule attached hereto as Schedule II, which identifies each Xxxxx Fargo
Loan, the schedule attached hereto as Schedule III, which identifies each
Principal Loan and the schedule attached hereto as Schedule IV, which identifies
each MSMC Loan as such schedules may be amended from time to time pursuant to
Section 2.3.
"MORTGAGE NOTE" means the note or other evidence of
indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.
"MORTGAGE RATE" means, for a given Mortgage Loan, the RSA
Companion Loan or a B Note, the per annum rate at which interest accrues on such
Mortgage Loan, RSA Companion Loan or B Note.
"MORTGAGED PROPERTY" means the real property, together with
improvements thereto, securing the indebtedness of the Mortgagor under the
related Mortgage Loan and, in the case of an A/B Mortgage Loan, the related B
Note and, in the case of the Loan Pair, the RSA Companion Loan.
"MORTGAGEE" means, with respect to any Mortgage as of any date
of determination, the mortgagee named therein as of such date.
"MORTGAGOR" means the obligor on a Mortgage Note.
"MSMC" has the meaning set forth in the Preliminary Statement
hereto.
"MSMC LOANS" means, collectively, those Mortgage Loans sold to
the Depositor pursuant to the Mortgage Loan Purchase Agreement IV and shown on
Schedule IV hereto.
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"NET AGGREGATE PREPAYMENT INTEREST SHORTFALL" means for any
Distribution Date, with respect to all Mortgage Loans which are not Specially
Serviced Mortgage Loans, the excess, if any, of aggregate Prepayment Interest
Shortfalls for such Mortgage Loans over the sum of (A) the Compensating Interest
to be paid by the Master Servicer on such Distribution Date and (B) the
aggregate Prepayment Interest Excesses for such Collection Period for all
Mortgage Loans which are not Specially Serviced Mortgage Loans.
"NEW LEASE" means any lease of any REO Property entered into
on behalf of the Trust, including any lease renewed or extended on behalf of the
Trust if the Trust has the right to renegotiate the terms of such lease.
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as
amended.
"NONDISQUALIFICATION OPINION" means a written Opinion of
Counsel to the effect that a contemplated action will neither cause any REMIC
Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding nor cause a "prohibited transaction," "prohibited contribution" or
any other tax (other than a tax on "net income from foreclosure property"
permitted to be incurred under this Agreement) to be imposed on any REMIC Pool
or the Trust.
"NONECONOMIC RESIDUAL INTEREST" means a residual interest that
is a "noneconomic residual interest" within the meaning of Treasury Regulation
Section 1.860E-1(c).
"NON-INVESTMENT GRADE CERTIFICATES" means each Class of
Certificates that, at the time of transfer, is not rated in one of the four
highest generic rating categories by at least one of Xxxxx'x or S&P.
"NONRECOVERABLE ADVANCE" means any of the following: (i) any
Pari Passu Loan Nonrecoverable Advance (including interest accrued thereon at
the Advance Rate) and (ii) the portion of any Advance (including interest
accrued thereon at the Advance Rate) previously made or proposed to be made by
the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent,
that, in its respective sole discretion, exercised in good faith and, with
respect to the Master Servicer and the Special Servicer, taking into account the
Servicing Standard, will not be or, in the case of a current delinquency, would
not be, ultimately recoverable, from Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds or Purchase Proceeds (or from any other collections) with
respect to the related Mortgage Loan or the RSA Companion Loan (and taking into
consideration any Crossed Mortgage Loans) (in the case of Servicing Advances) or
B Note (in the case of Servicing Advances) or REO Property (in the case of P&I
Advances and Servicing Advances), as evidenced by an Officer's Certificate
delivered pursuant to Section 4.4. Such Officer's Certificate shall be delivered
to the Trustee (upon which the Trustee may conclusively rely) or to the
Depositor (if the Trustee or the Fiscal Agent is delivering such Officer's
Certificate) and (in either case) to the Special Servicer and the Paying Agent
in the time periods as specified in Section 4.4 and shall include the
information and reports set forth in Section 4.4. Absent bad faith, the Master
Servicer's determination as to the recoverability of any Advance shall be
conclusive and binding on the Certificateholders and, in the case of any B Note
or the RSA Companion Loan, the holder of the B Note or the RSA Companion Loan,
as applicable, and may, in all cases, be relied on by the Trustee and the Fiscal
Agent; provided,
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however, that the Special Servicer may, at its option, make a determination in
accordance with the Servicing Standard that any P&I Advance or Servicing
Advance, if made, be a Nonrecoverable Advance and shall deliver to the Master
Servicer and the Trustee notice of such determination. Absent bad faith, any
such determination shall be conclusive and binding on the Certificateholders,
the Master Servicer, the Trustee and the Fiscal Agent. Absent bad faith, and
pursuant to Section 4.1A of this Agreement, any determination as to the
recoverability of any advance made with respect to the Xxxx Xxxxxxx Tower Pari
Passu Loan by the Master Servicer or any Other Master Servicer shall be
conclusive and binding on the Certificateholders and may, in all cases, be
relied on by the Trustee, the Fiscal Agent and the Master Servicer. In making
any nonrecoverability determination as described above, the relevant party shall
be entitled (i) to consider (among other things) the obligations of the
Mortgagor under the terms of the Mortgage Loan as it may have been modified,
(ii) to consider (among other things) the related Mortgaged Properties in their
"as is" then-current conditions and occupancies and such party's assumptions
(consistent with the Servicing Standard in the case of the Master Servicer or
the Special Servicer) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, (iii) to estimate and
consider, consistent with the Servicing Standard in the case of the Master
Servicer or the Special Servicer (among other things), future expenses and (iv)
to estimate and consider, consistent with the Servicing Standard (among other
things), the timing of recovery to such party. In addition, the relevant party
may, consistent with the Servicing Standard in the case of the Master Servicer
or the Special Servicer, update or change its nonrecoverability determinations
at any time in accordance with the terms hereof and may, consistent with the
Servicing Standard in the case of the Master Servicer or the Special Servicer,
obtain from the Special Servicer any analysis, appraisals or other information
in the possession of the Special Servicer for such purposes.
"NON-REGISTERED CERTIFICATE" means unless and until registered
under the Securities Act, any Class X, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M, Class N or Residual Certificate.
"NOTIONAL AMOUNT" means, as of any date of determination: (i)
with respect to all of the Class X-1 Certificates as a Class, the Class X-1
Notional Amount as of such date of determination; (ii) with respect to any Class
X-1 Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X-1 Notional Amount as of such date of determination;
(iii) with respect to all of the Class X-2 Certificates as a Class, the Class
X-2 Notional Amount as of such date of determination and (iv) with respect to
any Class X-2 Certificate, the product of the Percentage Interest evidenced by
such Certificate and the Class X-2 Notional Amount as of such date of
determination.
"OFFICER'S CERTIFICATE" means (v) in the case of the
Depositor, a certificate signed by one or more of the Chairman of the Board, any
Vice Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President, and by one or more of the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Depositor, or (w) in
the case of the Master Servicer and the Special Servicer, any of the officers
referred to above or an employee thereof designated as a Servicing Officer or
Special Servicing Officer pursuant to this Agreement, (x) in the case of the
Trustee or the Fiscal Agent, a certificate signed by a Responsible Officer, (y)
in the case of a Seller, a certificate signed by one or more of the Chairman of
the Board, any Vice Chairman, any Managing Director or Director, the President,
or any Executive Vice President, any Senior Vice President, Vice President,
Second Vice President
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or Assistant Vice President and (z) in the case of the Paying Agent, a
certificate signed by a Responsible Officer, each with specific responsibilities
for the matters contemplated by this Agreement.
"OPERATING ADVISER" shall mean the Person elected to serve as
the Operating Adviser pursuant to Section 9.37(a).
"OPINION OF COUNSEL" means a written opinion of counsel
addressed to the Trustee and the Paying Agent, reasonably acceptable in form and
substance to the Trustee and the Paying Agent, and who is not in-house counsel
to the party required to deliver such opinion but who, in the good faith
judgment of the Trustee and the Paying Agent, is Independent outside counsel
knowledgeable of the issues occurring in the practice of securitization with
respect to any such opinion of counsel concerning the taxation, or status as a
REMIC for tax purposes, of the Trust or any REMIC Pool.
"OTHER ADVANCE REPORT DATE" means with respect to the RSA
Companion Loan or a Xxxx Xxxxxxx Tower Companion Loan, as applicable, which has
been deposited into a commercial mortgage securitization trust, the date under
the related Other Companion Loan Pooling and Servicing Agreement that the
related Other Master Servicer is required (pursuant to the terms thereof) to
make a determination as to whether it will make a P&I Advance as required under
such Other Companion Loan Pooling and Servicing Agreement.
"OTHER COMPANION LOAN POOLING AND SERVICING AGREEMENT" means
the LB-UBS Series 2003-C5 Pooling and Servicing Agreement or any pooling and
servicing agreement relating to a Xxxx Xxxxxxx Tower Companion Loan or the RSA
Companion Loan that creates a commercial mortgage securitization trust, as
applicable.
"OTHER MASTER SERVICER" means the LB-UBS Series 2003-C5 Master
Servicer or any other master servicer under an Other Companion Loan Pooling and
Servicing Agreement relating to a Xxxx Xxxxxxx Tower Companion Loan or the RSA
Companion Loan, as applicable.
"OTHER OPERATING ADVISER" has the meaning set forth in
Section 9.4(d) hereof.
"OTHER POOLING AND SERVICING AGREEMENT" has the meaning set
forth in Section 9.4(d) hereof.
"OTHER SECURITIZATION" has the meaning set forth in
Section 9.4(d) hereof.
"OTHER SPECIAL SERVICER" has the meaning set forth in
Section 9.4(d) hereof.
"OWNERSHIP INTEREST" means, as to any Certificate, any
ownership or security interest in such Certificate as the Holder thereof and any
other interest therein, whether direct or indirect, legal or beneficial, as
owner or as pledgee.
"P&I ADVANCE" shall mean, (i) with respect to any Mortgage
Loan or Specially Serviced Mortgage Loan (other than the RSA Companion Loan or a
B Note) as to which all or a portion of the Scheduled Payment (other than a
Balloon Payment) due during the related Collection Period was not received by
the Master Servicer as of the related Determination Date (subject to Section
5.1(h)), the portion of such Scheduled Payment not received; (ii) with respect
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to any Balloon Mortgage Loan (including any REO Property as to which the related
Mortgage Loan provided for a Balloon Payment) as to which a Balloon Payment was
due during or prior to the related Collection Period but was delinquent, in
whole or in part, as of the related Determination Date, an amount equal to the
excess, if any, of the Assumed Scheduled Payment for such Balloon Mortgage Loan
for the related Collection Period, over any Late Collections received in respect
of such Balloon Payment during such Collection Period; and (iii) with respect to
each REO Property, an amount equal to the excess, if any, of the Assumed
Scheduled Payment for the Mortgage Loan related to such REO Property during the
related Collection Period, over remittances of REO Income to the Master Servicer
by the Special Servicer, reduced by any amounts required to be paid as taxes on
such REO Income (including taxes imposed pursuant to Section 860G(c) of the
Code); provided, however, that the interest portion of any Scheduled Payment or
Assumed Scheduled Payment shall be advanced at a per annum rate equal to the sum
of the REMIC I Net Mortgage Rate relating to such Mortgage Loan or such REO
Mortgage Loan and the Trustee Fee Rate, such that the Scheduled Payment or
Assumed Scheduled Payment to be advanced as a P&I Advance shall be net of the
Master Servicing Fee, the Excess Servicing Fee and the Primary Servicing Fees;
and provided, further, that the Scheduled Payment or Assumed Scheduled Payment
for any Mortgage Loan which has been modified shall be calculated based on its
terms as modified and provided, further, that the interest component of any P&I
Advance with respect to a Mortgage Loan as to which there has been an Appraisal
Reduction shall be an amount equal to the product of (i) the amount of interest
required to be advanced without giving effect to this proviso and (ii) a
fraction, the numerator of which is the Principal Balance of such Mortgage Loan
as of the immediately preceding Determination Date less any Appraisal Reduction
applicable to such Mortgage Loan (or, in the case of the Xxxx Xxxxxxx Tower Pari
Passu Loan or the RSA Pari Passu Loan, the portion thereof allocable to the Xxxx
Xxxxxxx Tower Pari Passu Loan or the RSA Pari Passu Loan under the Xxxx Xxxxxxx
Tower Intercreditor Agreement or the Loan Pair Intercreditor Agreement, as
applicable, and Section 1.6 of this Agreement) and the denominator of which is
the Principal Balance of such Mortgage Loan as of such Determination Date. All
P&I Advances for any Mortgage Loans that have been modified shall be calculated
on the basis of their terms as modified.
"P&I ADVANCE AMOUNT" means, with respect to any Mortgage Loan
or any REO Property, the amount of the P&I Advance for each Mortgage Loan
computed for any Distribution Date.
"PARI PASSU LOAN NONRECOVERABLE ADVANCE" means any
"Nonrecoverable Servicing Advance" (as defined in the LB-UBS Series 2003-C5
Pooling and Servicing Agreement) made with respect to the Xxxx Xxxxxxx Tower
Pari Passu Loan pursuant to and in accordance with the LB-UBS Series 2003-C5
Pooling and Servicing Agreement; provided that if the LB-UBS Series 2003-C5
Master Servicer shall have made a "Servicing Advance" (as defined in the LB-UBS
Series 2003-C5 Pooling and Servicing Agreement) in the nature of an expenditure
benefiting the related Mortgaged Property generally, the portion thereof
attributable to the Xxxx Xxxxxxx Tower Pari Passu Loan shall be determined based
on the outstanding balances of the Xxxx Xxxxxxx Tower Pari Passu Loan and all
the related pari passu loans secured by the Xxxx Xxxxxxx Tower Pari Passu
Mortgage on a pari passu basis on the date such advance was made.
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"PARI PASSU LOAN SERVICING FEE RATE" means the "Master
Servicing Fee Rate" and any other servicing fee rate (other than those payable
to the LB-UBS Series 2003-C5 Master Servicer) applicable to the Xxxx Xxxxxxx
Tower Pari Passu Loan as defined in the LB-UBS Series 2003-C5 Pooling and
Servicing Agreement.
"PARTICIPANT" means a broker, dealer, bank, other financial
institution or other Person for whom the Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.
"PASS-THROUGH RATE" or "PASS-THROUGH RATES" means with respect
to any Class of REMIC I Regular Interests, REMIC II Regular Interests or REMIC
Regular Certificates, other than the Class X Certificates, for the first
Distribution Date, the rate set forth in the Preliminary Statement hereto
(subject to the calculations set forth in the following sentence). For any
Distribution Date occurring thereafter (and with respect to the Class X
Certificates, for each Distribution Date), the Pass-Through Rates for (i) the
REMIC I Regular Interests shall equal the REMIC I Net Mortgage Rate on the
related Mortgage Loan for such Distribution Date, (ii) the REMIC II Regular
Interests shall equal the Weighted Average REMIC I Net Mortgage Rate for such
Distribution Date, (iii) the Class A-1, Class A-2, Class A-3 and Class A-4
Certificates, the fixed rate corresponding to such Class set forth in the
Preliminary Statement hereto, (iv) the Class B Certificates shall equal the
Weighted Average REMIC I Net Mortgage Rate for such Distribution Date less
0.26%, (v) the Class C, Class D, Class E, Class F and Class G Certificates shall
equal the Weighted Average REMIC I Net Mortgage Rate for such Distribution Date,
(vi) the Class H, Class J, Class K, Class L, Class M and Class N Certificates
shall equal the lesser of (A) 5.316% per annum and (B) the Weighted Average
REMIC I Net Mortgage Rate for such Distribution Date, (vii) the Class X-1
Certificates, the per annum rate equal to the product of the Accrued Certificate
Interest thereon for such Distribution Date and 12, divided by the Class X-1
Notional Amount and (viii) the Class X-2 Certificates, the per annum rate equal
to the product of the Accrued Certificate Interest thereon for such Distribution
Date and 12, divided by the Class X-2 Notional Amount. The Pass-Through Rate for
the Class A-1A Component, the Class A-1B Component and the Class A-1C Component
shall equal the Pass-Through Rate of the Class A-1 Certificates. The
Pass-Through Rate for the Class A-2A Component, the Class A-2B Component and the
Class A-2C Component shall equal the Pass-Through Rate of the Class A-2
Certificates. The Pass-Through Rate for the Class A-3A Component and the Class
A-3B Component shall equal the Pass-Through Rate of the Class A-3 Certificates.
The Pass-Through Rate for the Class A-4A Component, the Class A-4B Component and
the Class A-4C Component shall equal the Pass-Through Rate of the Class A-4
Certificates. The Pass-Through Rate for the Class B-1 Component, the Class B-2
Component and the Class B-3 Component shall equal the Pass-Through Rate of the
Class B Certificates. The Pass-Through Rate for the Class C-1 Component, the
Class C-2 Component and the Class C-3 Component shall equal the Pass-Through
Rate of the Class C Certificates. The Pass-Through Rate for the Class D-1
Component and the Class D-2 Component shall equal the Pass-Through Rate of the
Class D Certificates. The Pass-Through Rate for the Class F-1 Component and the
Class F-2 Component shall equal the Pass-Through Rate of the Class F
Certificates. The Pass-Through Rate for the Class J-1 Component and the Class
J-2 Component shall equal the Pass-Through Rate of the Class J Certificates.
"PAYING AGENT" means Xxxxx Fargo Bank Minnesota, National
Association and any successor or assign, as provided herein. The Luxembourg
Paying Agent shall not be the
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Paying Agent and the duties of the Luxembourg Paying Agent shall be distinct
from the duties of the Paying Agent.
"PAYING AGENT FEE" means the portion of the Trustee Fee
payable to the Paying Agent in an amount agreed to between the Trustee and the
Paying Agent.
"PERCENTAGE INTEREST" means with respect to each Class of
Certificates other than the Residual Certificates, the fraction of such Class
evidenced by such Certificate, expressed as a percentage (carried to four
decimal places and rounded, if necessary), the numerator of which is the
Certificate Balance or Notional Amount, as applicable, represented by such
Certificate determined as of the Closing Date (as stated on the face of such
Certificate) and the denominator of which is the Aggregate Certificate Balance
or Notional Amount, as applicable, of all of the Certificates of such Class
determined as of the Closing Date. With respect to each Residual Certificate,
the percentage interest in distributions (if any) to be made with respect to the
relevant Class, as stated on the face of such Certificate.
"PERFORMING PARTY" has the meaning set forth in
Section 8.26(b).
"PERMITTED TRANSFEREE" means any Transferee other than a
Disqualified Organization.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PHASE I ENVIRONMENTAL REPORT" means a report by an
Independent Person who regularly conducts environmental site assessments in
accordance with then current standards imposed by institutional commercial
mortgage lenders and who has a reasonable amount of experience conducting such
assessments.
"PLACEMENT AGENT" means Xxxxxx Xxxxxxx & Co. Incorporated,
Bear, Xxxxxxx & Co. Inc., Xxxxxxx, Xxxxx & Co. and Xxxxx Fargo Brokerage
Services, LLC or its respective successor in interest.
"PLAN" has the meaning set forth in Section 3.3(d).
"PLAN ASSET REGULATIONS" means the Department of Labor
regulations set forth in 29 C.F.R.ss.2510.3-101.
"PRELIMINARY PROSPECTUS SUPPLEMENT" has the meaning set forth
in the Preliminary Statement hereto.
"PREPAYMENT INTEREST EXCESS" means for any Distribution Date
and the related Collection Period, during which a full or partial Principal
Prepayment (including payment of a Balloon Payment other than in connection with
the foreclosure or liquidation of a Mortgage Loan) is made after the Due Date
for such Mortgage Loan through and including the last day of the Collection
Period, the amount of interest that accrues on the amount of such Principal
Prepayment from such Due Date to the date such payment was made, plus (if made)
any payment by the Mortgagor of interest that would have accrued to the next
succeeding Due Date
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(net of the Master Servicing Fee, the Primary Servicing Fees, the Excess
Servicing Fees, the Special Servicing Fee, the Trustee Fee and the servicing fee
and trustee fee payable in connection with the Xxxx Xxxxxxx Tower Pari Passu
Loan (in the case of the Xxxx Xxxxxxx Tower Pari Passu Loan), to the extent
collected.
"PREPAYMENT INTEREST SHORTFALL" means, with respect to any
Distribution Date, a shortfall in the collection of a full month's interest on
any Mortgage Loan, by reason of a full or partial Principal Prepayment
(including payment of a Balloon Payment other than in connection with the
foreclosure or liquidation of a Mortgage Loan) made during any Collection Period
prior to the Due Date for such Mortgage Loan in such Collection Period
(including any shortfall resulting from such a payment during the grace period
relating to such Due Date). The amount of any Prepayment Interest Shortfall
shall equal the excess of (A) the aggregate amount of interest which would have
accrued on the Scheduled Principal Balance of such Mortgage Loan if the Mortgage
Loan had paid on its Due Date and such Principal Prepayment or Balloon Payment
had not been made (net of the Master Servicing Fee, the Primary Servicing Fees,
the Excess Servicing Fees, the Special Servicing Fee, the Trustee Fee and the
servicing fee payable in connection with the Xxxx Xxxxxxx Tower Pari Passu Loan
(in the case of the Xxxx Xxxxxxx Tower Pari Passu Loan)) over (B) the aggregate
interest that did so accrue through the date such payment was made (net of such
fees).
"PREPAYMENT PREMIUM" means, with respect to any Mortgage Loan,
the RSA Companion Loan or any B Note for any Distribution Date, the prepayment
premiums, yield maintenance charges or percentage premiums, if any, received
during the related Collection Period in connection with Principal Prepayments on
such Mortgage Loan, RSA Companion Loan or B Note.
"PRIMARY COLLATERAL" means the portion of the Mortgaged
Property securing the Repurchased Loan or Crossed-Mortgage Loan, as applicable,
that is encumbered by a first mortgage lien.
"PRIMARY SERVICER" means Principal Global Investors, LLC and
each of its respective permitted successors and assigns.
"PRIMARY SERVICING AGREEMENT" means, with respect to the
Primary Servicer, the agreement between the Primary Servicer and the Master
Servicer, dated as of August 1, 2003, a form of which is attached hereto as
Exhibit G, under which the Primary Servicer services the Mortgage Loans set
forth on the schedule attached thereto.
"PRIMARY SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan, the applicable Primary Servicing Fee Rate multiplied by the
Scheduled Principal Balance of such Mortgage Loan immediately before the Due
Date occurring in such month, but prorated for the number of days during the
calendar month for such Mortgage Loan for which interest actually accrues on
such Mortgage Loan and payable only from collections on such Mortgage Loan.
"PRIMARY SERVICING FEE RATE" means, the monthly fee payable to
the applicable Primary Servicer (or the Master Servicer, as applicable) based on
the per annum rate specified on the Mortgage Loan Schedule, as more specifically
described, in the case of the Primary Servicer,
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in the applicable Primary Servicing Agreement (determined in the same manner
(other than the rate of accrual) as the applicable Mortgage Rate is determined
for such Mortgage Loan for such month).
"PRINCIPAL" has the meaning set forth in the Preliminary
Statement hereto.
"PRINCIPAL BALANCE" means, with respect to any Mortgage Loan,
B Note or REO Mortgage Loan, or the RSA Companion Loan for purposes of
performing calculations with respect to any Distribution Date, the principal
balance of such Mortgage Loan, RSA Companion Loan, B Note or the related REO
Mortgage Loan outstanding as of the Cut-Off Date after taking into account all
principal and interest payments made or due on or prior to the Cut-Off Date
(assuming, for any Mortgage Loan, the RSA Companion Loan or any B Note with a
Due Date in August 2003 that is not August 1, 2003, that principal and interest
payments for such month were paid on August 1, 2003), reduced (to not less than
zero) by (i) any payments or other collections of amounts allocable to principal
on such Mortgage Loan, RSA Companion Loan, B Note or related REO Mortgage Loan
that have been collected or received during any preceding Collection Period,
other than any Scheduled Payments due in any subsequent Collection Period, and
(ii) the principal portion of any Realized Loss incurred in respect of such
Mortgage Loan or related REO Mortgage Loan during any related Collection Period.
"PRINCIPAL BALANCE CERTIFICATES" means, collectively, the
Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates.
"PRINCIPAL DISTRIBUTION AMOUNT" means, on any Distribution
Date, the sum of the following amounts: (i) the principal portion of all
Scheduled Payments (other than the principal portion of Balloon Payments) and
any Assumed Scheduled Payments, in each case, to the extent received or
advanced, as the case may be, in respect of the Mortgage Loans and any REO
Mortgage Loans (but not in respect of the RSA Companion Loan or any B Note or
its successor REO Mortgage Loan) for their respective Due Dates occurring during
the related Collection Period; (ii) all payments (including Principal
Prepayments and the principal portion of Balloon Payments but not in respect of
the RSA Companion Loan or any B Note or its respective successor REO Mortgage
Loan) and any other collections (including Liquidation Proceeds (other than the
portion thereof, if any, constituting Excess Liquidation Proceeds), Condemnation
Proceeds, Insurance Proceeds, Purchase Proceeds and REO Income) received on or
in respect of the Mortgage Loans during the related Collection Period and that
were identified and applied by the Master Servicer as recoveries of principal
thereof.
"PRINCIPAL LOANS" means, collectively those Mortgage Loans
sold to the Depositor pursuant to Mortgage Loan Purchase Agreement III and shown
on Schedule III hereto.
"PRINCIPAL PREPAYMENT" means any voluntary or involuntary
payment or collection of principal on a Mortgage Loan, the RSA Companion Loan or
a B Note which is received or recovered in advance of its scheduled Due Date and
applied to reduce the Principal Balance of the Mortgage Loan, the RSA Companion
Loan or a B Note in advance of its scheduled Due Date, including, without
limitation, all proceeds, to the extent allocable to principal, received from
the payment of cash in connection with a substitution shortfall pursuant
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to Section 2.3; provided, that the pledge by a Mortgagor of Defeasance
Collateral with respect to a Defeasance Loan shall not be deemed to be a
Principal Prepayment.
"PRIVATE PLACEMENT MEMORANDUM" means the Private Placement
Memorandum dated August 6, 2003, pursuant to which the Class X-1, Class X-2,
Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class
N Certificates will be offered for sale.
"PROSPECTUS" has the meaning set forth in the Preliminary
Statement hereto.
"PURCHASE PRICE" means, with respect to the purchase by the
Seller or liquidation by the Special Servicer of (i) a Mortgage Loan or an REO
Mortgage Loan pursuant to Article II of this Agreement, (ii) an REO Mortgage
Loan pursuant to Section 9.15 or (iii) a Mortgage Loan pursuant to Section 9.36
under the circumstances described therein, a price equal to the sum of (A) 100%
of the unpaid Principal Balance of such Mortgage Loan (or deemed Principal
Balance, in the case of an REO Mortgage Loan), plus (B) accrued but unpaid
interest thereon calculated at the Mortgage Rate to, but not including, the Due
Date in the Collection Period in which such purchase or liquidation occurs, plus
(C) the amount of any expenses related to such Mortgage Loan and/or (if
applicable) the RSA Companion Loan, the related B Note or the related REO
Property (including any Servicing Advances and Advance Interest (which have not
been paid by the Mortgagor or out of Late Fees or default interest paid by the
related Mortgagor on the related Mortgage Loan and/or (if applicable) the RSA
Companion Loan or the related B Note) related to such Mortgage Loan and/or (if
applicable) the RSA Companion Loan or the related B Note and all Special
Servicing Fees and Liquidation Fees paid with respect to the Mortgage Loan
and/or (if applicable) the RSA Companion Loan or the related B Note) that are
reimbursable or payable to the Master Servicer, the Special Servicer, the Paying
Agent, the Trustee, the Fiscal Agent, the LB-UBS Series 2003-C5 Master Servicer
or the LB-UBS Series 2003-C5 Special Servicer, plus (D) if such Mortgage Loan or
REO Mortgage Loan is being repurchased or substituted for by a Seller pursuant
to the related Mortgage Loan Purchase Agreement, all expenses reasonably
incurred or to be incurred by a Primary Servicer, the Master Servicer, the
Special Servicer, the Depositor, the Paying Agent or the Trustee in respect of
the Material Breach or Material Document Defect giving rise to the repurchase or
substitution obligation (and that are not otherwise included in (C) above).
"PURCHASE PROCEEDS" means any cash amounts received by the
Master Servicer in connection with: (i) the repurchase of a Mortgage Loan or an
REO Mortgage Loan by a Seller pursuant to Section 2.3 or (ii) the purchase of
the Mortgage Loans and REO Properties by the Depositor, the Master Servicer, the
Special Servicer or the holders of the Class R-I Certificates pursuant to
Section 10.1(b).
"QUALIFIED BIDDER" means (A) as used in section 8.29(c), a
Person qualified to act as successor Master Servicer hereunder pursuant to
Section 8.22(b) (including the requirement set forth in Section 8.22(b) that
Rating Agency Confirmation shall have been obtained from each Rating Agency with
respect to such Person) and (B) as used in Section 9.31(c), any Person qualified
to act as successor Special Servicer hereunder pursuant to Section 9.21(b)
(including the requirement set forth in Section 9.21(b) that Rating Agency
Confirmation shall have been obtained form each Rating Agency with respect to
such Person).
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"QUALIFIED INSTITUTIONAL BUYER" means a qualified
institutional buyer qualifying pursuant to Rule 144A.
"QUALIFIED INSURER" means, (i) with respect to any Mortgage
Loan, the RSA Companion Loan or any B Note, an insurance company duly qualified
as such under the laws of the state in which the related Mortgaged Property is
located, duly authorized and licensed in such state to transact the applicable
insurance business and to write the insurance, but in no event rated lower than
"A2" by Moody's, if rated by Moody's or if not rated by Moody's, then Moody's
has issued a Rating Agency Confirmation and "A" by S&P if rated by S&P or if not
rated by S&P, then S&P has issued a Rating Agency Confirmation, and (ii) with
respect to the Servicer Errors and Omissions Insurance Policy or Servicer
Fidelity Bond an insurance company that has a claim paying ability no lower than
"A2" by Moody's if rated by Moody's, or if not rated by Moody's, then Moody's
has issued a Rating Agency Confirmation, and "A" by S&P if rated by S&P or if
not rated by S&P, then as to which S&P has issued a Rating Agency Confirmation,
or (iii) in either case, a company not satisfying clause (i) or (ii) but with
respect to which a Rating Agency Confirmation is obtained. "Qualified Insurer"
shall also mean any entity that satisfies all of the criteria, other than the
ratings criteria, set forth in one of the foregoing clauses and whose
obligations under the related insurance policy are guaranteed or backed by an
entity that satisfies the ratings criteria set forth in such clause (construed
as if such entity were an insurance company referred to therein).
"QUALIFYING SUBSTITUTE MORTGAGE LOAN" means, in the case of a
Mortgage Loan substituted for a Deleted Mortgage Loan, a Mortgage Loan which, on
the date of substitution, (i) has an outstanding principal balance, after
deduction of the principal portion of the Scheduled Payment due in the month of
substitution, not in excess of the Principal Balance of the Deleted Mortgage
Loan; provided, however, that, to the extent that the principal balance of such
Mortgage Loan is less than the Principal Balance of the Deleted Mortgage Loan,
then such differential in principal amount, together with interest thereon at
the Mortgage Rate on the related Mortgage Loan from the date as to which
interest was last paid through the last day of the month in which such
substitution occurs, shall be paid by the party effecting such substitution to
the Master Servicer for deposit into the Certificate Account, and shall be
treated as a Principal Prepayment hereunder; (ii) is accruing interest at a rate
of interest at least equal to that of the Deleted Mortgage Loan; (iii) has a
remaining term to stated maturity not greater than, and not more than two years
less than, that of the Deleted Mortgage Loan; (iv) has an original Loan-to-Value
Ratio not higher than that of the Deleted Mortgage Loan and a current
Loan-to-Value Ratio (equal to the outstanding principal balance on the date of
substitution divided by its current Appraised Value) not higher than the current
Loan-to-Value Ratio of the Deleted Mortgage Loan and has a current Debt Service
Coverage Ratio equal to or greater than the current Debt Service Coverage Ratio
of the Deleted Mortgage Loan; (v) will comply with all of the representations
and warranties relating to Mortgage Loans set forth herein, as of the date of
substitution; (vi) has a Phase I Environmental Report relating to the related
Mortgaged Property in its Mortgage Files and such Phase I Environmental Report
does not, in the good faith reasonable judgment of the Special Servicer,
consistent with the Servicing Standard raise material issues that have not been
adequately addressed; (vii) has an engineering report relating to the related
Mortgaged Property in its Mortgage Files and such engineering report does not,
in the good faith reasonable judgment of the Special Servicer, consistent with
the Servicing Standard raise material issues that have not been adequately
addressed; and (viii) as to which the Trustee and the Paying Agent have received
an Opinion of Counsel, at the related Seller's expense, that such Mortgage Loan
is a
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"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; provided that no Mortgage Loan may have a Maturity Date after the date
three years prior to the Rated Final Distribution Date, and provided, further,
that no such Mortgage Loan shall be substituted for a Deleted Mortgage Loan
unless Rating Agency Confirmation is obtained, and provided, further that no
such Mortgage Loan shall be substituted for a Deleted Mortgage Loan unless the
Operating Adviser shall have approved of such substitution (provided, however,
that such approval of the Operating Adviser may not be unreasonably withheld).
In the event that either one mortgage loan is substituted for more than one
Deleted Mortgage Loan or more than one mortgage loan is substituted for one or
more Deleted Mortgage Loans, then (A) the Principal Balance referred to in
clause (i) above shall be determined on the basis of aggregate Principal
Balances and (B) the rates referred to in clause (ii) above and the remaining
term to stated maturity referred to in clause (iii) above shall be determined on
a weighted average basis (provided, that the REMIC I Net Mortgage Rate for any
Qualifying Substitute Mortgage Loan may not be less than the highest
Pass-Through Rate of any outstanding Class of Certificates that is not subject
to a cap based on the Weighted Average REMIC I Net Mortgage Rate). Whenever a
Qualifying Substitute Mortgage Loan is substituted for a Deleted Mortgage Loan
pursuant to this Agreement, the party effecting such substitution shall certify
that such Mortgage Loan meets all of the requirements of this definition and
shall send such certification to the Paying Agent, which shall deliver a copy of
such certification to the Special Servicer, the Trustee and the Operating
Adviser promptly, and in any event within five Business Days following the
Paying Agent's receipt of such certification.
"RATED FINAL DISTRIBUTION DATE" means with respect to each
rated Class of Certificates, the Distribution Date in June 2041.
"RATING AGENCIES" means Moody's and S&P.
"RATING AGENCY CONFIRMATION" means, with respect to any
matter, confirmation in writing by each Rating Agency (or such Rating Agency as
is specified herein) that a proposed action, failure to act, or other event
specified herein will not in and of itself result in the withdrawal, downgrade,
or qualification, as applicable, of the then-current rating assigned by such
Rating Agency to any Class of Certificates then rated by such Rating Agency.
"REALIZED INTEREST LOSS" means, with respect to each Mortgage
Loan, (i) in the case of a Liquidation Realized Loss, the portion of any
Liquidation Realized Loss that exceeds the Realized Principal Loss on the
related Mortgage Loan, (ii) in the case of a Bankruptcy Loss, the portion of
such Realized Loss attributable to accrued interest on the related Mortgage
Loan, (iii) in the case of an Expense Loss, an Expense Loss resulting in any
period from the payment of the Special Servicing Fee and any Expense Losses set
forth in the last sentence of the definition of "Realized Principal Loss" or
(iv) in the case of a Modification Loss, a Modification Loss described in clause
(iii) of the definition thereof.
"REALIZED LOSS" means a Liquidation Realized Loss, a
Modification Loss, a Bankruptcy Loss or an Expense Loss with respect to a
Mortgage Loan. Realized Losses on a Mortgage Loan are allocated first to the
Principal Balance of, and then to interest on such Mortgage Loan.
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"REALIZED PRINCIPAL LOSS" means, with respect to each Mortgage
Loan, (i) in the case of a Liquidation Realized Loss, the amount of such
Realized Loss, to the extent that it does not exceed the Principal Balance of
the Mortgage Loan (or deemed Principal Balance, in the case of REO Property),
(ii) in the case of a Modification Loss, the amount of such Modification Loss
described in clause (i) of the definition thereof, (iii) in the case of a
Bankruptcy Loss, the portion of such Realized Loss attributable to the reduction
in the Principal Balance of the related Mortgage Loan, and (iv) in the case of
an Expense Loss, the portion thereof not treated as a Realized Interest Loss.
Notwithstanding clause (iv) of the preceding sentence, to the extent that
Expense Losses (exclusive of Expense Losses resulting from payment of the
Special Servicing Fee) exceed amounts with respect to the Mortgage Loans that
were identified as allocable to principal, such excess shall be treated as a
Realized Interest Loss.
"RECORD DATE" means, for each Distribution Date and each Class
of Certificates, the close of business on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs.
"RECOVERIES" means, as of any Distribution Date, any amounts
recovered with respect to a Mortgage Loan, the RSA Companion Loan, a B Note or
REO Property following the period in which a Final Recovery Determination occurs
plus other amounts defined as "Recoveries" herein.
"REGULATION S" means Regulation S under the 1933 Act.
"REGULATION S CERTIFICATE" means a written certification
substantially in the form set forth in Exhibit F hereto certifying that a
beneficial owner of an interest in a Regulation S Temporary Global Certificate
is not a U.S. Person (as defined in Regulation S).
"REGULATION S GLOBAL CERTIFICATES" means the Regulation S
Permanent Global Certificates together with the Regulation S Temporary Global
Certificates.
"REGULATION S PERMANENT GLOBAL CERTIFICATE" means any single
permanent global Certificate, in definitive, fully registered form without
interest coupons received in exchange for a Regulation S Temporary Global
Certificate.
"REGULATION S TEMPORARY GLOBAL CERTIFICATE" means, with
respect to any Class of Certificates offered and sold outside of the United
States in reliance on Regulation S, a single temporary global Certificate, in
definitive, fully registered form without interest coupons.
"REHABILITATED MORTGAGE LOAN" means any Specially Serviced
Mortgage Loan with respect to which (i) three consecutive Scheduled Payments
have been made (in the case of any such Mortgage Loan, the RSA Companion Loan or
B Note that was modified, based on the modified terms), or a complete defeasance
shall have occurred, (ii) no other Servicing Transfer Event has occurred and is
continuing (or with respect to determining whether a Required Appraisal Loan is
a Rehabilitated Mortgage Loan for applying Appraisal Reductions, no other
Appraisal Event has occurred and is continuing) and (iii) the Trust has been
reimbursed for all costs incurred as a result of the occurrence of a Servicing
Transfer Event or such amounts have been forgiven. An A Note shall not
constitute a Rehabilitated Mortgage Loan unless its related B Note would
constitute a Rehabilitated Mortgage Loan. A B Note shall not constitute a
Rehabilitated Mortgage Loan unless its related A Note also would constitute a
Rehabilitated
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Mortgage Loan. The RSA Pari Passu Loan shall not constitute a Rehabilitated
Mortgage Loan unless the RSA Companion Loan would constitute a Rehabilitated
Mortgage Loan. The RSA Companion Loan shall not constitute a Rehabilitated
Mortgage Loan unless the RSA Pari Passu Loan also would constitute a
Rehabilitated Mortgage Loan.
"RELEASE DATE" means the date 40 days after the later of (i)
the commencement of the offering of the Certificates and (ii) the Closing Date.
"REMIC" means a real estate mortgage investment conduit within
the meaning of Section 860D of the Code.
"REMIC I" means the segregated pool of assets consisting of
the Mortgage Loans (other than any Excess Interest payable thereon), such
amounts as shall from time to time be held in the Certificate Account and the
Distribution Account (other than the portion thereof constituting the Excess
Interest Sub-account), the Insurance Policies (other than the interests of the
holder of the RSA Companion Loan or any B Note therein) and any REO Properties
(other than the interests of the holder of the RSA Companion Loan or any B Note
therein), for which a REMIC election has been made pursuant to Section 12.1(a)
hereof. Excess Interest on the Mortgage Loans and the Excess Interest
Sub-account shall constitute assets of the Trust but shall not be a part of any
REMIC Pool formed hereunder. The Xxxx Xxxxxxx Tower Companion Loans and any
amounts payable thereon shall not constitute assets of the Trust or any REMIC
Pool formed hereunder. No B Note or any amounts payable thereon shall constitute
an asset of the Trust or any REMIC Pool formed hereunder. The RSA Companion Loan
or any amounts payable thereon shall not constitute an asset of the Trust or any
REMIC Pool formed hereunder.
"REMIC I INTERESTS" means, collectively, the REMIC I Regular
Interests and the Class R-I Certificates.
"REMIC I NET MORTGAGE RATE" means, with respect to any
Distribution Date, as to any REMIC I Regular Interest, a rate per annum equal
(a) with respect to any Mortgage Loan that accrues interest on the basis of a
360-day year consisting of twelve (12) 30-day months ("30/360 basis"), (i) the
Mortgage Rate thereof (without taking into account any increase therein after
the Anticipated Repayment Date in respect of an ARD Loan or any default interest
rate) as of the Cut-Off Date and without regard to any modification, waiver or
amendment of the terms thereof following the Cut-Off Date, minus (ii) the
Administrative Cost Rate, and (b) with respect to any Mortgage Loan that accrues
interest on a basis other than a 30/360 basis, the annualized rate that, when
applied to the Principal Balance of the related Mortgage Loan (on the day prior
to the Due Date preceding such Distribution Date) on a 30/360 basis for the
related loan accrual period, yields the amount of net interest that would have
accrued during the related loan accrual period assuming a net interest rate
equal to the rate described in clause (a) above, and assuming an interest
accrual basis that is the same as the actual interest accrual basis of such
Mortgage Loan, provided that for purposes of this clause (b), (i) the REMIC I
Net Mortgage Rate for the loan accrual period relating to the Due Dates in both
January and February in any year that is not a leap year and in February in any
year that is a leap year, shall be determined net of any amounts transferred to
the Interest Reserve Account and (ii) the REMIC I Net Mortgage Rate for the loan
accrual period relating to the Due Date in March shall be determined taking into
account the addition of any amounts withdrawn from the Interest Reserve Account.
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"REMIC I REGULAR INTERESTS" means, collectively, the
uncertificated interests designated as "regular interests" in REMIC I, which
shall consist of, with respect to each Mortgage Loan, an interest having an
initial Certificate Balance equal to the Cut-Off Date Scheduled Principal
Balance of such Mortgage Loan, and which has a Pass-Through Rate equal to the
REMIC I Net Mortgage Rate of such Mortgage Loan.
"REMIC II" means the segregated pool of assets consisting of
the REMIC I Regular Interests for which a REMIC election has been made pursuant
to Section 12.1(a) hereof.
"REMIC II INTERESTS" means, collectively, the REMIC II Regular
Interests and the Class R-II Certificates.
"REMIC II REGULAR INTEREST A-1A" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $72,643,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $58,685,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-1C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having initial Certificate Balance equal to $18,672,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-2A" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $36,755,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-2B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $132,895,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-2C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $5,350,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-3A" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $56,904,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-3B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate
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Balance equal to $108,210,000, and which has a Pass-Through Rate equal to the
Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST A-4A" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $28,395,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-4B" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $36,367,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST A-4C" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $496,617,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST B-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $6,783,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST B-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $11,882,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST B-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $12,701,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST C-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $8,093,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST C-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $16,729,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST C-3" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $8,037,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST D-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $2,043,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST D-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $11,400,000, and
which has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage
Rate.
"REMIC II REGULAR INTEREST E" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class E Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $2,895,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST F-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $4,573,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST G" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class G Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST H" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class H Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-1" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $2,027,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST J-2" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having an initial Certificate Balance equal to $961,000, and which
has a Pass-Through Rate equal to the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST K" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class K Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
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"REMIC II REGULAR INTEREST L" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class L Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST M" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class M Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTEREST N" means the uncertificated
interest designated as a "regular interest" in REMIC II, which shall consist of
an interest having a Certificate Balance equal to the Aggregate Certificate
Balance of the Class N Certificates, and which has a Pass-Through Rate equal to
the Weighted Average REMIC I Net Mortgage Rate.
"REMIC II REGULAR INTERESTS" means, collectively, the REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II Regular Interest
A-1C, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II
Regular Interest A-2C, REMIC II Regular Interest A-3A, REMIC II Regular Interest
A-3B, REMIC II Regular Interest A-4A, REMIC II Regular Interest A-4B, REMIC II
Regular Interest A-4C, REMIC II Regular Interest B-1, REMIC II Regular Interest
B-2, REMIC II Regular Interest B-3, REMIC II Regular Interest C-1, REMIC II
Regular Interest C-2, REMIC II Regular Interest C-3, REMIC II Regular Interest
D-1, REMIC II Regular Interest D-2, REMIC II Regular Interest E, REMIC II
Regular Interest F-1, REMIC II Regular Interest F-2, REMIC II Regular Interest
G, REMIC II Regular Interest H, REMIC II Regular Interest J-1, REMIC II Regular
Interest J-2, REMIC II Regular Interest K, REMIC II Regular Interest L, REMIC II
Regular Interest M and REMIC II Regular Interest N.
"REMIC III" means the segregated pool of assets consisting of
the REMIC II Regular Interests for which a REMIC election has been made pursuant
to Section 12.1(a) hereof.
"REMIC III CERTIFICATES" has the meaning set forth in the
final paragraph of the Preliminary Statement hereto.
"REMIC III REGULAR INTERESTS" means, collectively, the Class
A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates, Class A-4
Certificates, Class X-1 Certificates (each Class X-1 Certificate representing
multiple "regular interests" in REMIC III), Class X-2 Certificates (each Class
X-2 Certificate representing multiple "regular interests" in REMIC III), Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates
and Class N Certificates. References to REMIC III Regular Interests will, with
respect to the Class N Certificates, be considered to refer to the Class N REMIC
Interest that is a "regular interest" in REMIC III, where appropriate.
"REMIC POOL" means each of the three segregated pools of
assets designated as a REMIC pursuant to Section 12.1(a) hereof.
"REMIC PROVISIONS" means the provisions of the federal income
tax law relating to real estate mortgage investment conduits, which appear at
Sections 860A through 860G of
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Subchapter M of Chapter 1 of the Code, and related provisions, and final,
temporary and proposed regulations and rulings promulgated thereunder, as the
foregoing may be in effect from time to time and taking account, as appropriate,
of any proposed legislation or regulations which, as proposed, would have an
effective date prior to enactment or promulgation thereof.
"REMIC REGULAR CERTIFICATES" means, collectively, the Class A,
Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M and Class N Certificates.
"RENT LOSS POLICY" or "RENT LOSS INSURANCE" means a policy of
insurance generally insuring against loss of income or rent resulting from
hazards or acts of God.
"RENTS FROM REAL PROPERTY" means, with respect to any REO
Property, income of the character described in Section 856(d) of the Code.
"REO ACCOUNT" shall have the meaning set forth in Section
9.14(a) hereof.
"REO DISPOSITION" means the receipt by the Master Servicer or
the Special Servicer of Liquidation Proceeds and other payments and recoveries
(including proceeds of a final sale) from the sale or other disposition of REO
Property.
"REO INCOME" means, with respect to any REO Property that had
not been security for an A/B Mortgage Loan or the Loan Pair for any Collection
Period, all income received in connection with such REO Property during such
period less any operating expenses, utilities, real estate taxes, management
fees, insurance premiums, expenses for maintenance and repairs and any other
capital expenses directly related to such REO Property paid during such period
or, with respect to an REO Property that had been security for an A/B Mortgage
Loan or Loan Pair, the portion of the amounts described above received with
respect to such REO Property and allocable to the related A Note or the RSA Pari
Passu Loan, as applicable, pursuant to the related Intercreditor Agreement or
Loan Pair Intercreditor Agreement, as applicable. With respect to the Xxxx
Xxxxxxx Tower Pari Passu Loan (if the LB-UBS Series 2003-C5 Special Servicer has
foreclosed upon the Mortgaged Property secured by the Xxxx Xxxxxxx Tower Pari
Passu Mortgage), the REO Income shall comprise only such portion of the
foregoing that is allocable to the holder of the Xxxx Xxxxxxx Tower Pari Passu
Loan.
"REO MORTGAGE LOAN" means a Mortgage Loan, the RSA Companion
Loan or a B Note as to which the related Mortgaged Property is an REO Property.
"REO PROPERTY" means a Mortgaged Property (or an interest
therein, if the Mortgaged Property securing the Xxxx Xxxxxxx Tower Pari Passu
Loan and the Xxxx Xxxxxxx Tower Companion Loans, the Loan Pair or the Mortgaged
Property securing an A/B Mortgage Loan has been acquired by the Trust) acquired
by the Trust through foreclosure, deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a Defaulted Mortgage Loan or
otherwise treated as foreclosure property under the REMIC Provisions.
"REPORT DATE" means the third Business Day before the related
Distribution Date.
"REPURCHASED LOAN" has the meaning set forth in
Section 2.3(a).
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"REQUEST FOR RELEASE" means a request for release of certain
documents relating to the Mortgage Loans, a form of which is attached hereto as
Exhibit C.
"REQUIRED APPRAISAL LOAN" means any Mortgage Loan, Loan Pair
or B Note as to which an Appraisal Event has occurred. A Mortgage Loan, Loan
Pair or B Note will cease to be a Required Appraisal Loan at such time as it is
a Rehabilitated Mortgage Loan.
"RESERVE ACCOUNT" shall mean the Reserve Account maintained by
the Paying Agent in accordance with the provisions of Section 5.3, which shall
be an Eligible Account.
"RESIDUAL CERTIFICATES" means, with respect to REMIC I, the
Class R-I Certificates, with respect to REMIC II, the Class R-II Certificates,
and with respect to REMIC III, the Class R-III Certificates.
"RESPONSIBLE OFFICER" means, when used with respect to the
initial Trustee or the Fiscal Agent, any officer assigned to the Asset-Backed
Securities Trust Services Group, or with respect to the Paying Agent, any
officer assigned to the Corporate Trust Services Group, each with specific
responsibilities for the matters contemplated by this Agreement and when used
with respect to any successor Trustee, Fiscal Agent or Paying Agent, any Vice
President, Assistant Vice President, corporate trust officer or any assistant
corporate trust officer or persons performing similar roles on behalf of the
Trustee, Fiscal Agent or Paying Agent.
"RESTRICTED SERVICER REPORTS" means the following reports in
CMSA format (as in effect on the date hereof or as such formats may be changed
from time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit W prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgage Loans and
REO Properties)): (i) a Comparative Financial Status Report; (ii) without
duplication with Section 8.14, an NOI Adjustment Worksheet; (iii) without
duplication with Section 8.14, a CMSA Operating Statement Analysis Report, (iv)
subject to Section 8.11(h), a Servicer Watch List, (v) a Property File, (vi)
without duplication with Section 8.14, a Financial File and (vii) a CMSA Special
Servicer Loan File.
"REVERSE SEQUENTIAL ORDER" means sequentially to the Class N,
Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class D,
Class C, Class B and finally to the Class X and Class A Certificates, on a pro
rata basis, as described herein.
"RSA COMPANION LOAN" means with respect to the Mortgage Loan
designated as Mortgage Loan No. 20, the related A-2 Note, which is secured by
the related Mortgage on a pari passu basis with the RSA Pari Passu Loan. The RSA
Companion Loan is not a "Mortgage Loan."
"RSA COMPANION LOAN CUSTODIAL ACCOUNT" means each of the
custodial sub-account(s) of the Certificate Account (but which are not included
in the Trust) created and maintained by the Master Servicer pursuant to Section
5.1(c) on behalf of the holder of the related RSA Companion Loan. Any such
sub-account(s) shall be maintained as sub-accounts of an Eligible Account.
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"RSA PARI PASSU LOAN" means the Mortgage Loan designated as
Mortgage Loan No. 20 on the Mortgage Loan Schedule, comprised of the related A-1
Note and which is secured on a pari passu basis with the RSA Companion Loan. The
RSA Pari Passu Loan is a "Mortgage Loan."
"RULE 144A" means Rule 144A under the 1933 Act.
"RULE 144A-IAI GLOBAL CERTIFICATE" means, with respect to any
Class of Certificates offered and sold in reliance on Rule 144A or to certain
Institutional Accredited Investors, a single, permanent global Certificate, in
definitive, fully registered form without interest coupons.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"XXXXXXXX-XXXXX CERTIFICATION" has the meaning set forth in
Section 8.26(b).
"SCHEDULED PAYMENT" means each scheduled payment of principal
of, and/or interest on, a Mortgage Loan, the RSA Companion Loan or a B Note
required to be paid on its Due Date by the Mortgagor in accordance with the
terms of the related Mortgage Note, the RSA Companion Loan or B Note (excluding
all amounts of principal and interest which were due on or before the Cut-Off
Date, whenever received, and taking account of any modifications thereof and the
effects of any Debt Service Reduction Amounts and Deficient Valuation Amounts).
Notwithstanding the foregoing, the amount of the Scheduled Payment for the RSA
Pari Passu Loan or the RSA Companion Loan or any A Note or B Note shall be
calculated without regard to the Loan Pair Intercreditor Agreement or the
related Intercreditor Agreement, as applicable.
"SCHEDULED PRINCIPAL BALANCE" means, with respect to any
Mortgage Loan, B Note, REO Mortgage Loan or the RSA Companion Loan, for purposes
of performing calculations with respect to any Distribution Date, the Principal
Balance thereof minus the aggregate amount of any P&I Advances of principal
previously made with respect to such Mortgage Loan, B Note or REO Mortgage Loan.
"SELLER" means Principal, Xxxxx Fargo, BSCMI or MSMC as the
case may be.
"SENIOR CERTIFICATES" means the Class A and Class X
Certificates.
"SERVICER ERRORS AND OMISSIONS INSURANCE POLICY" or "ERRORS
AND OMISSIONS INSURANCE POLICY" means an errors and omissions insurance policy
maintained by the Master Servicer, the Special Servicer, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, in accordance with Section 8.2,
Section 9.2 and Section 7.17, respectively.
"SERVICER FIDELITY BOND" or "FIDELITY BOND" means a bond or
insurance policy under which the insurer agrees to indemnify the Master
Servicer, the Special Servicer, the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, (subject to standard exclusions) for all losses (less
any deductible) sustained as a result of any theft, embezzlement, fraud or other
dishonest act on the part of the Master Servicer's, the Special Servicer's, the
Trustee's, the Fiscal Agent's or the Paying Agent's, as the case may be,
directors, officers or
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employees and is maintained in accordance with Section 8.2, Section 9.2 and
Section 7.17, respectively.
"SERVICER MORTGAGE FILE" means copies of the mortgage
documents listed in the definition of Mortgage File relating to a Mortgage Loan
and shall also include, to the extent required to be (and actually) delivered to
the applicable Seller pursuant to the applicable Mortgage Loan documents, copies
of the following items: the Mortgage Note, any Mortgage, the Assignment of
Leases and the Assignment of Mortgage, any guaranty/indemnity agreement, any
loan agreement, any insurance policies or certificates (as applicable), any
property inspection reports, any financial statements on the property, any
escrow analysis, any tax bills, any Appraisal, any environmental report, any
engineering report, any asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies.
"SERVICING ADVANCE" means any cost or expense of the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as the case may
be, designated as a Servicing Advance pursuant to this Agreement and any other
costs and expenses incurred by the Master Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as the case may be, to protect and preserve the
security for such Mortgage Loan and/or (if applicable) the related B Note or the
RSA Companion Loan.
"SERVICING OFFICER" means, any officer or employee of the
Master Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, the RSA Companion Loan and any B Note whose
name and specimen signature appear on a list of servicing officers or employees
furnished to the Trustee by the Master Servicer and signed by an officer of the
Master Servicer, as such list may from time to time be amended.
"SERVICING STANDARD" means, with respect to the Master
Servicer or the Special Servicer, as the case may be, to service and administer
the Mortgage Loans (and the RSA Companion Loan and any B Note) that it is
obligated to service and administer pursuant to this Agreement on behalf of the
Trustee and in the best interests of and for the benefit of the
Certificateholders (and in the case of any B Note, the related holder of the B
Note, and in the case of the RSA Companion Loan, the holder of the RSA Companion
Loan) (as determined by the Master Servicer or the Special Servicer, as the case
may be, in its good faith and reasonable judgment), in accordance with
applicable law, the terms of this Agreement and the terms of the respective
Mortgage Loans, the RSA Companion Loan and any B Note (and, in the case of the
Loan Pair or any A Note and B Note, the Loan Pair Intercreditor Agreement or the
related Intercreditor Agreement, as applicable) and, to the extent consistent
with the foregoing, further as follows:
(a) with the same care, skill and diligence as is normal
and usual in its general mortgage servicing and REO property management
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to mortgage loans and REO properties that are comparable to
those for which it is responsible hereunder;
(b) with a view to the timely collection of all scheduled
payments of principal and interest under the Mortgage Loans, the RSA Companion
Loan and any B Note or, if a Mortgage Loan, the RSA Companion Loan or any B Note
comes into and continues in default
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and if, in the good faith and reasonable judgment of the Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) (or in the case of any A/B Mortgage
Loan and its related B Note or the Loan Pair, the maximization of recovery on
such A/B Mortgage Loan or the Loan Pair, as applicable, to the
Certificateholders and the holder of the related B Note or the RSA Companion
Loan, as applicable, all taken as a collective whole) on a present value basis
(the relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related REMIC I Net Mortgage Rate,
in the case of the Mortgage Loans (other than any A Note or the RSA Pari Passu
Loan) or the weighted average of the mortgage rates on the related A Note and B
Note, in the case of any A/B Mortgage Loan, and on the RSA Pari Passu Loan and
the RSA Companion Loan in the case of the Loan Pair); and without regard to: (I)
any other relationship that the Master Servicer or the Special Servicer, as the
case may be, or any Affiliate thereof may have with the related Mortgagor; (II)
the ownership of any Certificate or any interest in the Xxxx Xxxxxxx Tower
Companion Loans, the RSA Companion Loan, a B Note or any mezzanine loan related
to a Mortgage Loan by the Master Servicer or the Special Servicer, as the case
may be, or any Affiliate thereof; (III) the Master Servicer's obligation to make
Advances; (IV) the right of the Master Servicer (or any Affiliate thereof) or
the Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction and (V) any obligation
of the Master Servicer (or any Affiliate thereof) to repurchase any Mortgage
Loan from the Trust.
"SERVICING TRANSFER EVENT" means the occurrence of any of the
following events: (i) any Mortgage Loan, the RSA Companion Loan or any B Note as
to which a Balloon Payment is past due, and the Master Servicer has determined,
in its good faith reasonable judgment in accordance with the Servicing Standard,
that payment is unlikely to be made on or before the 60th day succeeding the
date the Balloon Payment was due, or any other payment is more than 60 days past
due or has not been made on or before the second Due Date following the Due Date
such payment was due; (ii) any Mortgage Loan, the RSA Companion Loan or any B
Note as to which, to the Master Servicer's knowledge, the Mortgagor has
consented to the appointment of a receiver or conservator in any insolvency or
similar proceeding of, or relating to, such Mortgagor or to all or substantially
all of its property, or the Mortgagor has become the subject of a decree or
order issued under a bankruptcy, insolvency or similar law and such decree or
order shall have remained undischarged or unstayed for a period of 30 days;
(iii) any Mortgage Loan, the RSA Companion Loan or any B Note as to which the
Master Servicer shall have received notice of the foreclosure or proposed
foreclosure of any other lien on the Mortgaged Property; (iv) any Mortgage Loan,
the RSA Companion Loan or any B Note as to which the Master Servicer has
knowledge of a default (other than a failure by the related Mortgagor to pay
principal or interest) which in the good faith reasonable judgment of the Master
Servicer materially and adversely affects the interests of the
Certificateholders or the holder of any related B Note or the RSA Companion Loan
and which has occurred and remains unremedied for the applicable grace period
specified in such Mortgage Loan (or, if no grace period is specified, 60 days);
(v) any Mortgage Loan, the RSA Companion Loan or any B Note as to which the
Mortgagor admits in writing its inability to pay its debts generally as they
become due, files a petition to take advantage of any applicable insolvency or
reorganization statute, makes an assignment for the benefit of its creditors or
voluntarily suspends payment of its obligations; (vi) any Mortgage Loan, the RSA
Companion Loan or any B Note as to which, in the good faith reasonable judgment
of the Master Servicer, (a) (other than with respect to any
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A/B Mortgage Loan) a payment default is imminent or is likely to occur within 60
days, or (b) any other default is imminent or is likely to occur within 60 days
and such default, in the judgment of the Master Servicer, is reasonably likely
to materially and adversely affect the interests of the Certificateholders or
the holder of any related B Note or the RSA Companion Loan (as the case may be);
and (vii) with respect to any A/B Mortgage Loan, if the holder of the B Note
chooses not to cure a monetary default that is permitted to be cured under the
related Intercreditor Agreement, the Business Day following the expiration of
the Cure Period (as defined in the related Intercreditor Agreement) that
commences one month after such monetary default; provided, however, that (1) if
the holder of the B Note exercised its right to cure a monetary default and a
monetary default occurs in the following month due to the holder of the B Note's
failure to cure, then servicing of such Mortgage Loan shall be transferred to
the Special Servicer on the Business Day following the expiration of the Cure
Period (as defined in the related Intercreditor Agreement) of the holder of the
B Note if the holder of the B Note does not cure the current monetary default or
(2) if the holder of the B Note has exercised its right to cure three
consecutive monetary defaults and a monetary default occurs in the following
month, then servicing of such Mortgage Loan shall be transferred to the Special
Servicer at the expiration of the Mortgagor's grace period for the current
monetary default. If a Servicing Transfer Event occurs with respect to an A
Note, it shall be deemed to have occurred also with respect to its related B
Note. If a Servicing Transfer Event occurs with respect to a B Note, it shall be
deemed to have occurred also with respect to its related A Note. However, if a
Servicing Transfer Event has not occurred with respect to an A Note solely due
to the holder of the related B Note exercising its cure rights under the related
Intercreditor Agreement, then a Servicing Transfer Event will not occur with
respect to such B Note. If a Servicing Transfer Event occurs with respect to the
RSA Pari Passu Loan, it shall be deemed to have occurred also with respect to
the RSA Companion Loan. If a Servicing Transfer Event occurs with respect to the
RSA Companion Loan, it shall be deemed to have occurred also with respect to the
RSA Pari Passu Loan.
"SIMILAR LAWS" has the meaning set forth in Section 3.3(d).
"SINGLE-PURPOSE ENTITY" means a Person, other than an
individual, whose organizational documents provide substantially to the effect
that it is formed or organized solely for the purpose of owning and collecting
payments from Defeasance Collateral for the benefit of the Trust and which (i)
does not engage in any business unrelated thereto and the financing thereof;
(ii) does not have any assets other than those related to its interest in
Defeasance Collateral; (iii) maintains its own books, records and accounts, in
each case which are separate and apart from the books, records and accounts of
any other Person; (iv) conducts business in its own name and uses separate
stationery, invoices and checks; (v) does not guarantee or assume the debts or
obligations of any other Person; (vi) does not commingle its assets or funds
with those of any other Person; (vii) transacts business with affiliates on an
arm's length basis pursuant to written agreements; and (viii) holds itself out
as being a legal entity, separate and apart from any other Person, and otherwise
complies with the single-purpose requirements established by the Rating
Agencies. The entity's organizational documents also provide that any
dissolution and winding up or insolvency filing for such entity requires the
unanimous consent of all partners or members, as applicable, and that such
documents may not be amended with respect to the Single-Purpose Entity
requirements.
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"SPECIAL SERVICER" means ARCap Servicing, Inc., or any
successor Special Servicer as herein provided, including without limitation, any
successor Special Servicer appointed pursuant to Section 9.39 hereof.
"SPECIAL SERVICER COMPENSATION" means, with respect to any
applicable period, the sum of the Special Servicing Fees, the Liquidation Fees
and Work-Out Fees and any other amounts to be paid to the Special Servicer
pursuant to the terms of this Agreement.
"SPECIAL SERVICER REMITTANCE DATE" means the Business Day
preceding each Determination Date.
"SPECIAL SERVICING FEE" means, for each calendar month, as to
each Mortgage Loan (other than the Xxxx Xxxxxxx Tower Pari Passu Loan), the RSA
Companion Loan or any B Note that is a Specially Serviced Mortgage Loan
(including REO Mortgage Loans), the fraction or portion of the Special Servicing
Fee Rate applicable to such month (determined using the same interest accrual
methodology that is applied with respect to the Mortgage Rate for such Mortgage
Loan, RSA Companion Loan or B Note for such month) multiplied by the Scheduled
Principal Balance of such Specially Serviced Mortgage Loan immediately before
the Due Date occurring in such month.
"SPECIAL SERVICING FEE RATE" means 0.25% per annum.
"SPECIAL SERVICING OFFICER" means any officer or employee of
the Special Servicer involved in, or responsible for, the administration and
servicing of the Specially Serviced Mortgage Loans whose name and specimen
signature appear on a list of servicing officers or employees furnished to the
Trustee, the Paying Agent and the Master Servicer by the Special Servicer signed
by an officer of the Special Servicer, as such list may from time to time be
amended.
"SPECIALLY SERVICED MORTGAGE LOAN" means, as of any date of
determination, any Mortgage Loan (other than the Xxxx Xxxxxxx Tower Pari Passu
Loan), the RSA Companion Loan or any B Note with respect to which the Master
Servicer has notified the Special Servicer, the Operating Adviser and the
Trustee that a Servicing Transfer Event has occurred (which notice shall be
effective upon receipt) and the Special Servicer has received all information,
documents and records relating to such Mortgage Loan, RSA Companion Loan or B
Note as reasonably requested by the Special Servicer to enable it to assume its
duties with respect to such Mortgage Loan, RSA Companion Loan or B Note. A
Specially Serviced Mortgage Loan shall cease to be a Specially Serviced Mortgage
Loan from and after the date on which the Special Servicer notifies the Master
Servicer, the Operating Adviser, the Paying Agent and the Trustee, in accordance
with Section 8.1(b), that such Mortgage Loan (and the related B Note in the case
of an A/B Mortgage Loan, and the RSA Companion Loan in the case of the Loan
Pair) has become a Rehabilitated Mortgage Loan (and, in the case of an A Note
(or B Note) that is or was a Specially Serviced Mortgage Loan, its related B
Note (or A Note) has also become a Rehabilitated Mortgage Loan and, in the case
of the RSA Pari Passu Loan (or the RSA Companion Loan) that is or was a
Specially Serviced Mortgage Loan, the RSA Companion Loan (or RSA Pari Passu
Loan) has also become a Rehabilitated Mortgage Loan), with respect to such
Servicing Transfer Event, unless and until the Master Servicer notifies the
Special Servicer, the
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Paying Agent and the Trustee, in accordance with Section 8.1(b) that another
Servicing Transfer Event with respect to such Mortgage Loan, RSA Companion Loan
or B Note exists or occurs.
"STANDARD HAZARD INSURANCE POLICY" means a fire and casualty
extended coverage insurance policy in such amount and with such coverage as
required by this Agreement.
"SUB-SERVICER" has the meaning set forth in Section 8.4.
"SUBORDINATE CERTIFICATES" means, collectively, the Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M and Class N Certificates.
"SUCCESSFUL BIDDER" has the meaning set forth in
Section 8.29(d) or Section 9.31(d), as applicable.
"TAX MATTERS PERSON" means the person designated as the "tax
matters person" of each REMIC Pool pursuant to Treasury Regulations Section
1.860F-4(d) and temporary Treasury Regulations Section 301.6231(a)(7)-1T.
"TERMINATION PRICE" has the meaning set forth in
Section 10.1(b).
"TITLE INSURANCE POLICY" means a title insurance policy
maintained with respect to a Mortgage Loan issued on the date of origination of
the related Mortgage Loan.
"TRANSFER" means any direct or indirect transfer, sale,
pledge, hypothecation, or other form of assignment of any Ownership Interest in
a Certificate.
"TRANSFEREE" means any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"TRANSFEROR" means any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"TRUST" means the trust created pursuant to this Agreement,
the assets which consist of all the assets of REMIC I (including the Mortgage
Loans (other than Excess Interest), such amounts as shall from time to time be
held in the Certificate Account, the Distribution Account, the Insurance
Policies, any REO Properties and other items referred to in Section 2.1(a)
hereof), REMIC II and REMIC III and the Excess Interest Sub-account and any
Excess Interest on the Mortgage Loans. The Trust shall not include any Xxxx
Xxxxxxx Tower Companion Loan, any B Note, any interest of the holders of a B
Note, any A/B Loan Custodial Account or the RSA Companion Loan, any interest of
the holders of the RSA Companion Loan or the RSA Companion Loan Custodial
Account.
"TRUSTEE" means LaSalle Bank National Association, as trustee,
or its successor-in-interest, or if any successor trustee, or any co-trustee
shall be appointed as herein provided, then "Trustee" shall also mean such
successor trustee (subject to Section 7.7 hereof) and such co-trustee (subject
to Section 7.9 hereof), as the case may be.
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"TRUSTEE FEE" means for each calendar month, as to each
Mortgage Loan (including REO Mortgage Loans and Defeasance Loans), the portion
of the Trustee Fee Rate applicable to such month (determined using the same
interest accrual methodology (other than the rate of accrual) that is applied
with respect to the Mortgage Rate for such Mortgage Loan for such month)
multiplied by the Scheduled Principal Balance of each such Mortgage Loan
immediately before the Due Date occurring in such month; provided that a portion
of the Trustee Fee agreed upon between the Trustee and the Paying Agent shall be
applied to pay the Paying Agent Fee.
"TRUSTEE FEE RATE" means 0.00214% per annum (which includes
the Paying Agent Fee).
"TRUSTEE MORTGAGE FILE" means the mortgage documents listed in
the definition of Mortgage File hereof pertaining to a particular Mortgage Loan
(and, if applicable, the related B Note and the RSA Companion Loan) and any
additional documents required to be added to the Mortgage File pursuant to this
Agreement; provided that whenever the term "Trustee Mortgage File" is used to
refer to documents actually received by the Trustee or a Custodian on its
behalf, such terms shall not be deemed to include such documents required to be
included therein unless they are actually so received.
"UNDERWRITER" means each of Xxxxxx Xxxxxxx & Co. Incorporated,
Bear, Xxxxxxx & Co. Inc., Xxxxxxx, Xxxxx & Co. and Xxxxx Fargo Brokerage
Services, LLC or its successors in interest.
"UNITED STATES TAX PERSON" means any of (i) a citizen or
resident of the United States, (ii) corporation or partnership organized in or
under the laws of the United States or any political subdivision thereof, (iii)
an estate the income of which is includible in gross income for United States
tax purposes, regardless of its source or (iv) a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more United States Tax Persons has the authority to
control all substantial decisions of such trust.
"UNPAID INTEREST" means, on any Distribution Date with respect
to any Class of Interests or Certificates (other than the Residual
Certificates), the portion of Distributable Certificate Interest for such Class
remaining unpaid as of the close of business on the preceding Distribution Date,
plus one month's interest thereon at the applicable Pass-Through Rate.
"UNRESTRICTED SERVICER REPORTS" means the following reports in
CMSA format (as in effect on the date hereof or as such formats may be changed
from time to time by the CMSA) in, and containing substantially the information
contemplated by, the forms attached hereto as part of Exhibit X prepared by the
Master Servicer (combining reports in such forms prepared by the Master Servicer
and the Special Servicer (with respect to Specially Serviced Mortgaged Loans and
REO Properties)): (a) the following electronic files; (i) a Loan Set-Up File
(with respect to the initial Distribution Date only); and (ii) a Loan Periodic
Update File; and (b) the following supplemental reports: (i) a Delinquent Loan
Status Report, (ii) an Historical Loan Modification Report, (iii) an Historical
Liquidation Report, (iv) an REO Status Report, and (v) a CMSA Loan Level
Reserve/LOC Report.
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"USAP" shall have the meaning set forth in Section 8.13.
"WEIGHTED AVERAGE REMIC I NET MORTGAGE RATE" means, with
respect to any Distribution Date, the weighted average of the REMIC I Net
Mortgage Rates for the REMIC I Regular Interests, weighted on the basis of their
respective Certificate Balances as of the close of business on the preceding
Distribution Date.
"XXXXX FARGO" has the meaning set forth in the Preliminary
Statement hereto.
"XXXXX FARGO LOANS" means, collectively, those Mortgage Loans
sold to the Depositor pursuant to Mortgage Loan Purchase Agreement II and shown
on Schedule II hereto.
"WORK-OUT FEE" means a fee payable with respect to any
Rehabilitated Mortgage Loan (other than the Xxxx Xxxxxxx Tower Pari Passu Loan),
the RSA Companion Loan or any B Note, equal to the product of (x) 1.0% and (y)
the amount of each collection of interest (other than default interest and any
Excess Interest) and principal received (including any Condemnation Proceeds
received and applied as a collection of such interest and principal) on such
Mortgage Loan, the RSA Companion Loan or B Note for so long as it remains a
Rehabilitated Mortgage Loan.
SECTION 1.2 CALCULATIONS RESPECTING MORTGAGE LOANS. (a)
Calculations required to be made by the Paying Agent pursuant to this Agreement
with respect to any Mortgage Loan, the RSA Companion Loan or any B Note shall be
made based upon current information as to the terms of such Mortgage Loan, the
RSA Companion Loan and B Note and reports of payments received from the Master
Servicer on such Mortgage Loan, RSA Companion Loan and B Note and payments to be
made to the Paying Agent as supplied to the Paying Agent by the Master Servicer.
The Paying Agent shall not be required to recompute, verify or recalculate the
information supplied to it by the Master Servicer and may conclusively rely upon
such information in making such calculations. If, however, a Responsible Officer
of the Paying Agent has actual knowledge of an error in the calculations, the
Paying Agent shall inform the Master Servicer of such error.
(b) Unless otherwise required by law or the applicable
Mortgage Loan, the RSA Companion Loan or B Note documents (or the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement, as applicable),
any amounts (other than escrow and reserve deposits and reimbursements of lender
advances and expenses) received in respect of a Mortgage Loan, the RSA Companion
Loan or a B Note as to which a default has occurred and is continuing shall be
applied first to overdue interest due with respect to such Mortgage Loan, RSA
Companion Loan or B Note at the Mortgage Rate thereof, next to current interest
due with respect to such Mortgage Loan, RSA Companion Loan or B Note at the
Mortgage Rate thereof, next to the reduction of the Principal Balance of such
Mortgage Loan, RSA Companion Loan or B Note to zero if such Mortgage Loan, RSA
Companion Loan or B Note has been accelerated and in respect of any scheduled
payments of principal then due to the extent that such Mortgage Loan, RSA
Companion Loan or B Note has not yet been accelerated, next to any default
interest and other amounts due on such Mortgage Loan, RSA Companion Loan or B
Note and finally to Late Fees due with respect to such Mortgage Loan, RSA
Companion Loan or B Note.
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SECTION 1.3 CALCULATIONS RESPECTING ACCRUED INTEREST.
Accrued interest on any Certificate shall be calculated based upon a 360-day
year consisting of twelve 30-day months and Pass-Through Rates shall be carried
out to eight decimal places, rounded if necessary. All dollar amounts calculated
hereunder shall be rounded to the nearest xxxxx.
SECTION 1.4 INTERPRETATION.
(a) Whenever the Agreement refers to a Distribution Date
and a "related" Collection Period, Interest Accrual Period, Record Date, Due
Date, Report Date, Monthly Certificateholders Report, Special Servicer
Remittance Date, Master Servicer Remittance Date or Determination Date, such
reference shall be to the Collection Period, Interest Accrual Period, Record
Date, Due Date, Report Date, Special Servicer Remittance Date, Master Servicer
Remittance Date or Determination Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.1 shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting principles, as
applicable.
(c) The words "hereof," "herein" and "hereunder," and words
of similar import, when used in this Agreement, shall refer to this agreement as
a whole and not to any particular provision of this Agreement, and references to
Sections, Schedules and Exhibits contained in this Agreement are references to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
(d) Whenever a term is defined herein, the definition
ascribed to such term shall be equally applicable to both the singular and
plural forms of such term and to masculine, feminine and neuter genders of such
term.
(e) This Agreement is the result of arm's-length
negotiations between the parties and has been reviewed by each party hereto and
its counsel. Each party agrees that any ambiguity in this Agreement shall not be
interpreted against the party drafting the particular clause which is in
question.
SECTION 1.5 ARD LOANS. Notwithstanding any provision of
this Agreement:
(a) For the ARD Loans, the Excess Interest accruing as a
result of the step-up in the Mortgage Rate upon failure of the related Mortgagor
to pay the principal on the Anticipated Repayment Date as specifically provided
for in the related Mortgage Note shall not be taken into account for purposes of
the definitions of "Appraisal Reduction," "Assumed Scheduled Payment," "Mortgage
Rate," "Purchase Price" and "Realized Loss."
(b) Excess Interest shall constitute an asset of the Trust
but not an asset of any REMIC Pool.
(c) Neither the Master Servicer nor the Special Servicer
shall take any enforcement action with respect to the payment of Excess Interest
unless the taking of such action is consistent with the Servicing Standard and
all other amounts due under such Mortgage
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Loan have been paid, and, in the good faith and reasonable judgment of the
Master Servicer and the Special Servicer, as the case may be, the Liquidation
Proceeds expected to be recovered in connection with such enforcement action
will cover the anticipated costs of such enforcement action and, if applicable,
any associated interest thereon.
(d) Liquidation Fees shall not be deemed to be earned on
Excess Interest.
(e) With respect to an ARD Loan after its Anticipated
Repayment Date, the Master Servicer or the Special Servicer, as the case may be,
shall be permitted, in its discretion, to waive in accordance with Section 8.18
and Section 9.5 hereof, all or any accrued Excess Interest if, prior to the
related Maturity Date, the related Mortgagor has requested the right to prepay
the Mortgage Loan in full together with all payments required by the Mortgage
Loan in connection with such prepayment except for all or a portion of accrued
Excess Interest, provided that the Master Servicer's or the Special Servicer's
determination to waive the right to such accrued Excess Interest is in
accordance with the Servicing Standard and with Section 8.18 and Section 9.5
hereof. The Master Servicer or the Special Servicer, as the case may be, will
have no liability to the Trust, the Certificateholders or any other person so
long as such determination is based on such criteria.
SECTION 1.6 CERTAIN MATTERS WITH RESPECT TO LOAN PAIRS AND
A/B MORTGAGE LOANS.
(a) The parties hereto acknowledge that, pursuant to the
related Loan Pair Intercreditor Agreement or Intercreditor Agreement, if the RSA
Pari Passu Loan or B Note, as applicable, is no longer part of the Trust Fund,
the new holder of such RSA Pari Passu Loan or B Note, as applicable, shall
negotiate one or more new servicing agreements with the Master Servicer and the
Special Servicer, provided that, prior to entering into any such new servicing
agreement, the new holder of the RSA Pari Passu Loan or B Note, as applicable,
shall obtain and provide to the holder of the related RSA Companion Loan and/or
B Note written confirmation from each rating agency then rating any
securitization relating to such RSA Companion Loan and/or B Note providing that
such new servicing agreement will not result in the downgrade, qualification or
withdrawal of its then-current ratings of any securities issued in such
securitization; provided, that prior to such time the Master Servicer and the
Special Servicer shall continue to service the related Loan Pair and/or A/B
Mortgage Loan to the extent provided in the related Loan Pair Intercreditor
Agreement or Intercreditor Agreement, as applicable.
(b) For the avoidance of doubt and subject to subsection
(a) above, the parties acknowledge that the rights and duties of each of the
Master Servicer and the Special Servicer under Article VIII and Article IX and
the obligation of the Master Servicer to make Advances, insofar as such rights,
duties and obligations relate to any A/B Mortgage Loan (including both the
related A Note and the related B Note) or the Loan Pair (including both the RSA
Pari Passu Loan and the RSA Companion Loan), shall terminate upon the earliest
to occur of the following with respect to such A/B Mortgage Loan or Loan Pair,
as the case may be: (i) any repurchase of or substitution for the related A Note
or the RSA Pari Passu Loan by the applicable Seller pursuant to Section 2.3,
(ii) any purchase of the related A Note by the owner of the related B Note
pursuant to the terms of the related Intercreditor Agreement and (iii) any
payment in full of any and all amounts due (or deemed due) under the related A
Note or the RSA Pari Passu Loan
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(or its successor REO Mortgage Loan) (including amounts to which the holder of
such A Note or the RSA Pari Passu Loan is entitled under the related
Intercreditor Agreement or Loan Pair Intercreditor Agreement), as applicable;
provided, however, that this statement shall not limit (A) the duty of the
Master Servicer or the Special Servicer to deliver or make available the reports
otherwise required of it hereunder with respect to the Collection Period in
which such event occurs or (B) the rights of the Master Servicer or the Special
Servicer that may otherwise accrue or arise in connection with the performance
of its duties hereunder with respect to such A/B Mortgage Loan or Loan Pair
prior to the date on which such event occurs.
(c) In connection with any purchase described in clause
(ii) of subsection (b) or an event described in clause (iii) of subsection (b),
the Trustee, the Master Servicer and the Special Servicer shall each tender to
(in the case of a purchase under such clause (ii)) the related purchaser
(provided that the related purchaser shall have paid the full amount of the
applicable purchase price) or (in the case of such clause (iii)) to the holder
of the RSA Companion Loan or B Note (if then still outstanding), upon delivery
to them of a receipt executed by such purchaser or holder, all portions of the
Mortgage File and other documents pertaining to such Loan Pair or A/B Mortgage
Loan, as applicable, possessed by it, and each document that constitutes a part
of the Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to such purchaser or holder (or the designee of such purchaser or
holder) in the same manner, and pursuant to appropriate forms of assignment,
substantially similar to the manner and forms pursuant to which documents were
previously assigned to the Trustee by the related Seller, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release. The Master Servicer shall, and is also hereby authorized
and empowered by the Trustee to, convey to such purchaser or such holder any
deposits then held in an Escrow Account relating to the applicable A/B Mortgage
Loan or Loan Pair. If the RSA Pari Passu Loan and the RSA Companion Loan or an A
Note and the related B Note under the applicable Mortgage Loan are then REO
Mortgage Loans, then the Special Servicer shall, and is also hereby authorized
and empowered by the Trustee to, convey to such purchaser or such holder, in
each case, to the extent not needed to pay or reimburse the Master Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in accordance with this
Agreement, deposits then held in the REO Account insofar as they relate to the
related REO Property.
(d) If an expense under this Agreement relates, in the
reasonable judgment of the Master Servicer, the Special Servicer, the Trustee or
the Paying Agent, as applicable, primarily to the administration of the Trust
Fund or any REMIC formed hereunder or to any determination respecting the
amount, payment or avoidance of any tax under the REMIC Provisions or the actual
payment of any REMIC tax or expense with respect to any REMIC formed hereunder,
then such expense shall not be allocated to, deducted or reimbursed from, or
otherwise charged against the holder of the RSA Companion Loan or any B Note and
such holder shall not suffer any adverse consequences as a result of the payment
of such expense.
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ARTICLE II
DECLARATION OF TRUST;
ISSUANCES OF CERTIFICATES
SECTION 2.1 CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, the Depositor does
hereby assign in trust to the Trustee, without recourse, for the benefit of the
Certificateholders all the right, title and interest of the Depositor, in, to
and under (i) the Mortgage Loans identified on the Mortgage Loan Schedule
including the related Mortgage Notes, Mortgages, security agreements and title,
hazard and other insurance policies, including all Qualifying Substitute
Mortgage Loans, all distributions with respect thereto payable after the Cut-Off
Date, the Mortgage File and all rights, if any, of the Depositor in the
Distribution Account, all REO Accounts, the Certificate Account, the Reserve
Account and the Interest Reserve Account, (ii) the Depositor's rights under each
Mortgage Loan Purchase Agreement that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof, (iii) the Initial Deposit, (iv) the
Depositor's rights under any Intercreditor Agreement, the Loan Pair
Intercreditor Agreement, the Xxxx Xxxxxxx Tower Intercreditor Agreement and the
LB-UBS Series 2003-C5 Pooling and Servicing Agreement with respect to the Xxxx
Xxxxxxx Tower Pari Passu Loan and (v) all other assets included or to be
included in REMIC I for the benefit of REMIC II and REMIC III or the Grantor
Trust for the benefit of the Class N Certificates. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-Off Date. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and is intended by
the parties to constitute a sale. In connection with the initial sale of the
Certificates by the Depositor, the purchase price to be paid includes a portion
attributable to interest accruing on the Certificates from and after the Cut-Off
Date. The transfer and assignment of the Xxxx Xxxxxxx Tower Pari Passu Loan to
the Trustee and the right to service such Mortgage Loans are subject to the
terms and conditions of the LB-UBS Series 2003-C5 Pooling and Servicing
Agreement and the related Xxxx Xxxxxxx Tower Intercreditor Agreement.
(b) In connection with the Depositor's assignment pursuant
to Section 2.1(a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each Seller pursuant to the applicable Mortgage
Loan Purchase Agreement to deliver to and deposit with, or cause to be delivered
to and deposited with, the Trustee or a Custodian appointed hereunder, on or
before the Closing Date, the Mortgage Note for each Mortgage Loan so assigned,
endorsed to the Trustee as specified in clause (i) of the definition of
"Mortgage File." Each Seller is required, pursuant to the applicable Mortgage
Loan Purchase Agreement, to deliver to the Trustee the remaining documents
constituting the Mortgage File for each Mortgage Loan within the time period set
forth therein. None of the Trustee, the Fiscal Agent, the Paying Agent, any
Custodian, the Master Servicer or the Special Servicer shall be liable for any
failure by any Seller or the Depositor to comply with the document delivery
requirements of the Mortgage Loan Purchase Agreements and this Section 2.1(b).
(c) The applicable Seller shall, at the expense of such
Seller as to each of its respective Mortgage Loans, promptly (and in any event
within 45 days following the receipt thereof) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC financing statements, as appropriate, each
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assignment to the Trustee referred to in clauses (iv), (vi)(B) and (ix)(B) of
the definition of "Mortgage File". Each such assignment shall reflect that it
should be returned by the public recording office to the Trustee following
recording or filing; provided that in those instances where the public recording
office retains the original Assignment of Mortgage, assignment of Assignment of
Leases or assignment of UCC financing statements, the applicable Seller shall
obtain therefrom a certified copy of the recorded original. The applicable
Seller shall forward copies thereof to the Trustee and the Special Servicer. If
any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the applicable Seller shall,
pursuant to the applicable Mortgage Loan Purchase Agreement, promptly prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the applicable Seller shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate.
The parties acknowledge the obligation of each Seller pursuant
to Section 2 of the related Mortgage Loan Purchase Agreement to deliver to the
Trustee, on or before the fifth Business Day after the Closing Date, five
limited powers of attorney substantially in the form attached as Exhibit C to
the Primary Servicing Agreement in favor of the Trustee and the Special Servicer
to empower the Trustee and, in the event of the failure or incapacity of the
Trustee, the Special Servicer, to submit for recording, at the expense of the
applicable Seller, any mortgage loan documents required to be recorded as
described in the preceding paragraph and any intervening assignments with
evidence of recording thereon that are required to be included in the Mortgage
Files (so long as original counterparts have previously been delivered to the
Trustee). The Sellers agree to reasonably cooperate with the Trustee and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The Trustee and each other party hereto agrees that no such power
of attorney shall be used with respect to any Mortgage Loan by or under
authorization by any party hereto except that to the extent that the absence of
a document described in the second preceding sentence with respect to such
Mortgage Loan remains unremedied as of the earlier of (i) the date that is 180
days following the delivery of notice of such absence to the related Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents for recording, at the related Seller's
expense, after the periods set forth above; provided, however, the Trustee shall
not submit such assignments for recording if the applicable Seller produces
evidence that it has sent any such assignment for recording and certifies that
it is awaiting its return from the applicable recording office.
(d) All relevant servicing or loan documents and records in
the possession of the Depositor or the Sellers that relate to the Mortgage
Loans, the RSA Companion Loan or B Notes and that are not required to be a part
of a Mortgage File in accordance with the definition thereof shall be delivered
to the Master Servicer or the related Primary Servicer on its behalf, on or
before the date that is 45 days following the Closing Date and shall be held by
the Master Servicer or related Primary Servicer on behalf of the Trustee in
trust for the benefit of the Certificateholders. To the extent delivered to the
Master Servicer or the related Primary Servicer by the related Seller, the
Servicer Mortgage File, will include, to the extent required to be (and
actually) delivered to the applicable Seller pursuant to the applicable Mortgage
Loan documents, copies of the following items: the Mortgage Note, any Mortgage,
the Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the
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insurance policies or certificates (as applicable), the property inspection
reports, any financial statements on the property, any escrow analysis, the tax
bills, the Appraisal, the environmental report, the engineering report, the
asset summary, financial information on the Mortgagor/sponsor and any
guarantors, any letters of credit, any intercreditor agreement and any
Environmental Insurance Policies. Delivery of any of the foregoing documents to
the applicable Primary Servicer (or sub-servicer) shall be deemed delivery to
the Master Servicer and satisfy the Depositor's obligations under this Section
2.1(d). None of the Master Servicer, the Special Servicer or any Primary
Servicer shall have any liability for the absence of any of the foregoing items
from the Servicing Mortgage File if such item was not delivered by the related
Seller.
(e) In connection with the Depositor's assignment pursuant
to Section 2.1(a) above, the Depositor shall deliver to the Trustee on or before
the Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date, which
Mortgage Loan Purchase Agreements shall contain the representations and
warranties made by the Sellers with respect to each related Mortgage Loan as of
the Closing Date.
(f) In connection herewith, the Depositor has acquired the
Principal Loans from Principal, the Xxxxx Fargo Loans from Xxxxx Fargo, the
BSCMI Loans from BSCMI and the MSMC Loans from MSMC. The Depositor will deliver
the original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
Principal Loans to the Trustee, endorsed as otherwise provided herein, to effect
the transfer to the Trustee of such Mortgage Notes and all related deeds of
trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
Xxxxx Fargo Loans to the Trustee, endorsed as otherwise provided herein, to
effect the transfer to the Trustee of such Mortgage Notes and all related deeds
of trust, mortgages and other loan documents. The Depositor will deliver the
original Mortgage Notes (or lost note affidavits with copies of the related
Mortgage Notes, as described in the definition of Mortgage File) relating to the
BSCMI Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. The Depositor will deliver the original
Mortgage Notes (or lost note affidavits with copies of the related Mortgage
Notes, as described in the definition of Mortgage File) relating to the MSMC
Loans to the Trustee, endorsed as otherwise provided herein, to effect the
transfer to the Trustee of such Mortgage Notes and all related deeds of trust,
mortgages and other loan documents. To avoid the unnecessary expense and
administrative inconvenience associated with the execution and recording of
multiple assignment documents, Principal, Xxxxx Fargo, BSCMI and MSMC, as
applicable, are required under the Mortgage Loan Purchase Agreements to deliver
Assignments of Mortgages and assignments of Assignments of Leases and
assignments of UCC financing statements naming the Trustee, on behalf of the
Certificateholders, as assignee. Notwithstanding the fact that the assignments
shall name the Trustee, on behalf of the Certificateholders, as the assignee,
the parties hereto acknowledge and agree that for all purposes the Principal
Loans shall be deemed to have been transferred from Principal to the Depositor,
the Xxxxx Fargo Loans shall be deemed to have been transferred from Xxxxx Fargo
to the Depositor, the BSCMI Loans shall be deemed to have been transferred from
BSCMI to the Depositor and the MSMC Loans shall be deemed to have been
transferred from MSMC to the Depositor, and all Mortgage Loans shall be deemed
to have been transferred from the Depositor to the Trustee on behalf of the
Certificateholders.
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SECTION 2.2 ACCEPTANCE BY TRUSTEE. The Trustee will hold
(i) the documents constituting a part of the Mortgage Files delivered to it,
(ii) the REMIC I Regular Interests, and (iii) the REMIC II Regular Interests, in
each case, in trust for the use and benefit of all present and future
Certificateholders. To the extent that the contents of the Mortgage File for any
A Note relate to the corresponding B Note, the Trustee, or the Custodian on the
Trustee's behalf, will also hold such Mortgage File in trust for the benefit of
the holder of the related B Note; provided, that if a B Note remains outstanding
following payment in full of the amounts due under the related A Notes, the
Mortgage Loan documents relating to such A/B Mortgage Loan (exclusive of any
related solely to the A Notes) shall be assigned to the holder of the B Note or
its designee. To the extent that the contents of the Mortgage File for the RSA
Pari Passu Loan relate to the RSA Companion Loan, the Trustee, or the Custodian,
on the Trustee's behalf, will also hold such Mortgage File in trust for the
benefit of the holder of the RSA Companion Loan.
On the Closing Date in respect of the Initial Certification,
and within 75 days after the Closing Date in respect of the Final Certification,
the Trustee shall examine the Mortgage Files in its possession, and shall
deliver to the Depositor, the Sellers, the Master Servicer, the Special Servicer
and the Operating Adviser a certification (the "Initial Certification" and the
"Final Certification", respectively, in the respective forms set forth as
Exhibit B-1 and Exhibit B-2 hereto), which may be in electronic format (i) in
the case of the Initial Certification, as to each Mortgage Loan listed in the
Mortgage Loan Schedule, except as may be specified in the schedule of exceptions
attached thereto, to the effect that: (A) all documents pursuant to clause (i)
of the definition of Mortgage File are in its possession, (B) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate to such
Mortgage Loan, and (C) each Mortgage Note has been endorsed as provided in
clause (i) of the definition of Mortgage File, and (ii) in the case of the Final
Certification, as to each Mortgage Loan listed in the Mortgage Loan Schedule,
except as may be specified in the schedule of exceptions attached thereto, to
the effect that: (A) all documents pursuant to clauses (i), (ii), (iv), (v),
(vi), (viii), (x) and (xii) of the definition of Mortgage File required to be
included in the Mortgage File (to the extent required to be delivered pursuant
to this Agreement and any applicable Primary Servicing Agreement), and with
respect to all documents specified in the other clauses of the definition of
Mortgage File to the extent known by a Responsible Officer of the Trustee to be
required pursuant to this Agreement, are in its possession, (B) such documents
have been reviewed by it and have not been materially mutilated, damaged,
defaced, torn or otherwise physically altered, and such documents relate to such
Mortgage Loan, (C) based on its examination and only as to the Mortgage Note and
Mortgage, the street address of the Mortgaged Property set forth in the Mortgage
Loan Schedule respecting such Mortgage Loan accurately reflects the information
contained in the documents in the Mortgage File, and (D) each Mortgage Note has
been endorsed. Notwithstanding the foregoing, the delivery of a commitment to
issue a Title Insurance Policy in lieu of the delivery of the actual Title
Insurance Policy shall not be considered a Material Document Defect with respect
to any Mortgage File if such actual Title Insurance Policy is delivered to the
Trustee or a Custodian on its behalf not later than the 180th day following the
Closing Date. The Trustee shall deliver to the Master Servicer, the Special
Servicer, the Operating Adviser and each Seller a copy of such Final
Certification, which may be in electronic format.
Within 360 days after the Cut-Off Date, the Trustee shall
provide a confirmation of receipt of recorded assignments of Mortgage (as
described in the definition of Mortgage File, with evidence of recording
thereon) or otherwise provide evidence of such recordation to the
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Master Servicer, the Special Servicer, the Operating Adviser and each Seller,
and if any recorded assignment of Mortgage has not been received by the Trustee
by such time, the Trustee shall provide information in such confirmation on the
status of missing assignments. The Trustee agrees to use reasonable efforts to
submit for recording any unrecorded assignments of Mortgage that have been
delivered to it (including effecting such recordation process through or
cooperating with the applicable Seller) such recordation to be at the expense of
the applicable Seller; provided, however, that the Trustee shall not submit for
recording any such assignments if the applicable Seller produces evidence that
it has sent any such assignment for recording and is awaiting its return from
the applicable recording office. In giving the certifications required above,
the Trustee shall be under no obligation or duty to inspect, review or examine
any such documents, instruments, securities or other papers to determine whether
they or the signatures thereon are valid, legal, genuine, enforceable, in
recordable form or appropriate for their represented purposes, or that they are
other than what they purport to be on their face, or to determine whether any
Mortgage File should include any assumption agreement, modification agreement,
consolidation agreement, extension agreement, Assignment of Lease, ground lease,
UCC financing statement, guaranty, written assurance, substitution agreement,
lock box agreement, intercreditor agreement, management agreement or letter of
credit.
If any exceptions are noted on a schedule of exceptions
attached to the Final Certification, including exceptions resulting from the
fact that the recordation and/or filing has not been completed (based solely on
the absence of receipt by the Custodian (or the Trustee) of the particular
documents showing evidence of the recordation and/or filing), then the Custodian
on behalf of the Trustee (or the Trustee) shall continuously update such
schedule of exceptions to reflect receipt of any corrected documents, additional
documents or instruments or evidences of recordation and/or filing, as to each
Mortgage Loan, until the earliest of the following dates: (i) the date on which
all such exceptions are eliminated (any such elimination resulting from the fact
that recordation and/or filing has been completed shall be based solely on
receipt by the Custodian or the Trustee of the particular documents showing
evidence of the recordation and/or filing), (ii) the date on which all the
affected Mortgage Loans are removed from the Trust and (iii) the second
anniversary of the Closing Date, and shall provide such updated schedule of
exceptions (which may be in electronic format) to each of the Depositor, each
Seller (as to its respective Mortgage Loans only), the Master Servicer, the
Special Servicer, the Operating Adviser and the Paying Agent on or about the
date that is 180 days after the Closing Date and then again every 90 days
thereafter (until the earliest date specified above). Upon request, the Paying
Agent shall promptly forward a copy thereof to each Certificateholder in the
Controlling Class and shall deliver or make available a copy thereof to other
Certificateholders. Promptly, and in any event within two Business Days,
following any request therefor by the Depositor, the Master Servicer, the
Special Servicer or the Operating Adviser that is made later than two years
following the Closing Date, the Custodian (or the Trustee) shall deliver an
updated schedule of exceptions, which may be in electronic format (to the extent
the prior schedule showed exceptions), to the requesting Person and the Paying
Agent, which shall make available a copy thereof.
The Trustee or its authorized agents shall retain possession
and custody of each Trustee Mortgage File in accordance with and subject to the
terms and conditions set forth herein.
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SECTION 2.3 SELLERS' REPURCHASE OF MORTGAGE LOANS FOR
MATERIAL DOCUMENT DEFECTS AND MATERIAL BREACHES OF REPRESENTATIONS AND
WARRANTIES.
(a) If any party hereto discovers that any document or
documents constituting a part of a Mortgage File has not been delivered as and
when required, has not been properly executed, or is defective on its face or
discovers or receives notice of a breach of any of the representations and
warranties relating to the Mortgage Loans required to be made by a Seller
regarding the characteristics of the Mortgage Loans and/or related Mortgaged
Properties as set forth in the related Mortgage Loan Purchase Agreements, and in
either case such defect or breach either (i) materially and adversely affects
the interests of the holders of the Certificates in the related Mortgage Loan,
or (ii) both (A) the document defect or breach materially and adversely affects
the value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect", and such a
breach described in the preceding clause (i) or (ii), a "Material Breach") such
party shall give prompt written notice to the other parties hereto and to each
Rating Agency subject to the terms of the applicable Mortgage Loan Purchase
Agreement. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the Master
Servicer shall, and the Special Servicer may, request that the related Seller,
not later than 90 days from such Seller's receipt of the notice of such Material
Document Defect or Material Breach, cure such Material Document Defect or
Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code)
but the related Seller is diligently attempting to effect such correction or
cure, as certified by such Seller in an Officer's Certificate delivered to the
Trustee, then the cure period will be extended for an additional 90 days unless,
solely in the case of a Material Document Defect, (x) the Mortgage Loan is then
a Specially Serviced Mortgage Loan and a Servicing Transfer Event has occurred
as a result of a monetary default or as described in clause (ii) or clause (v)
of the definition of "Servicing Transfer Event" and (y) the Material Document
Defect was identified in a certification delivered to the Seller by the Trustee
pursuant to Section 2.2 not less than 90 days prior to the delivery of the
notice of such Material Document Defect. The parties acknowledge that neither
delivery of a certification or schedule of exceptions to a Seller pursuant to
Section 2.2 or otherwise nor possession of such certification or schedule by the
Seller shall, in and of itself, constitute delivery of notice of any Material
Document Defect or knowledge or awareness by the Seller of any Material Document
Defect listed therein.
If any such Material Document Defect or Material Breach cannot
be corrected or cured in all material respects within the above cure periods,
the related Seller will be obligated, not later than the last day of such
permitted cure period, to (i) repurchase the affected Mortgage Loan or REO
Mortgage Loan from the Trust at the applicable Purchase Price in accordance with
the related Mortgage Loan Purchase Agreement, or (ii) if within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the related Mortgage Loan is a "defective obligation"
within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury
Regulation Section 1.860G-2(f)), at the related Seller's option, without
recourse (other than the representations and warranties made with respect
thereto), replace such Mortgage Loan or REO Mortgage Loan with a Qualifying
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Substitute Mortgage Loan. If such Material Document Defect or Material Breach
would cause the Mortgage Loan to be other than a "qualified mortgage" (as
defined in the Code), then notwithstanding the previous sentence or the previous
paragraph, the repurchase must occur within 85 days from the date the related
Seller was notified of the defect and substitution must occur within the sooner
of (i) 85 days from the date the related Seller was notified of the defect or
(ii) two years from the Closing Date.
As to any Qualifying Substitute Mortgage Loan or Loans, the
Master Servicer shall not execute any instrument effecting the substitution
unless the related Seller has delivered to the Trustee for such Qualifying
Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the related
Assignment of Mortgage, and such other documents and agreements as are required
by Section 2.1, with the Mortgage Note endorsed as required by Section 2.1 and
the Master Servicer shall be entitled to rely on statements and certifications
from the Trustee for this purpose. No substitution may be made in any calendar
month after the Determination Date for such month. Monthly payments due with
respect to Qualifying Substitute Mortgage Loans in the month of substitution
shall not be part of the Trust and will be retained by Master Servicer and
remitted by the Master Servicer to the related Seller on the next succeeding
Distribution Date. For the month of substitution, distributions to
Certificateholders will include the Scheduled Payment due on the related Deleted
Mortgage Loan for such month and thereafter the related Seller shall be entitled
to retain all amounts received in respect of such Deleted Mortgage Loan.
The Master Servicer shall amend or cause to be amended the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and
the substitution of the Qualifying Substitute Mortgage Loan or Loans and upon
such amendment the Master Servicer shall deliver or cause to be delivered such
amended Mortgage Loan Schedule to the Trustee, the Paying Agent and the Special
Servicer. Upon such substitution, the Qualifying Substitute Mortgage Loan or
Loans shall be subject to the terms of this Agreement in all respects. Upon
receipt of the Trustee Mortgage File pertaining to any Qualifying Substitute
Mortgage Loans, the Trustee shall release the Trustee Mortgage File relating to
such Deleted Mortgage Loan to the related Seller, and the Trustee (and the
Depositor, if necessary) shall execute and deliver such instruments of transfer
or assignment in the form presented to it, in each case without recourse,
representation or warranty, as shall be necessary to vest title (to the extent
that such title was transferred to the Trustee or the Depositor) in the related
Seller or its designee to any Deleted Mortgage Loan (including any property
acquired in respect thereof or any insurance policy proceeds relating thereto)
substituted for pursuant to this Section 2.3.
If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is cross-collateralized and cross-defaulted with one or more other Mortgage
Loans ("Crossed Mortgage Loans") and (z) the applicable document defect or
breach does not constitute a Material Document Defect or Material Breach, as the
case may be, as to such Crossed Mortgage Loans (without regard to this
paragraph), then the applicable document defect or breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Crossed Mortgage Loan for purposes of the above
provisions, and the related Seller shall be obligated to repurchase or replace
each such Crossed Mortgage Loan in accordance with the provisions above unless,
in the case of such breach or document defect, the Seller (A) provides a
Nondisqualification Opinion to the Trustee at the expense of the Seller and (B)
both of the following conditions would be satisfied if the related Seller were
to repurchase or replace only
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those Mortgage Loans as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph (the "Affected Loan(s)"): (i) the
Debt Service Coverage Ratio for all such other Mortgage Loans (excluding the
Affected Loan(s)) for the four calendar quarters immediately preceding the
repurchase or replacement is not less than the lesser of (A) 0.10x below the
debt service coverage ratio for all such other Mortgage Loans (including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus Supplement
and (B) the debt service coverage ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement, and (ii) the Loan-to-Value Ratio for
all such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not greater
than the greater of (A) the loan-to-value ratio, expressed as a whole number
(taken to one decimal place), for all such Crossed Mortgage Loans (including the
Affected Loan(s)) set forth in Appendix II to the Final Prospectus Supplement
plus 10% and (B) the loan-to-value ratio for all such Crossed Mortgage Loans
(including the Affected Loan(s)), at the time of repurchase or replacement. The
determination of the Master Servicer as to whether the conditions set forth
above have been satisfied shall be conclusive and binding in the absence of
manifest error. The Master Servicer will be entitled to cause to be delivered,
or direct the related Seller to (in which case the related Seller shall) cause
to be delivered to the Master Servicer, an Appraisal of any or all of the
related Mortgaged Properties for purposes of determining whether the condition
set forth in clause (ii) above has been satisfied, in each case at the expense
of the related Seller if the scope and cost of the Appraisal is approved by the
related Seller (such approval not to be unreasonably withheld).
With respect to any Defective Mortgage Loan, to the extent
that the applicable Seller is required to repurchase or substitute for such
Defective Mortgage Loan (each, a "Repurchased Loan") in the manner prescribed
above while the Trustee continues to hold any Crossed Mortgage Loan, the
applicable Seller and the Depositor have agreed in the related Mortgage Loan
Purchase Agreement to forbear from enforcing any remedies against the other's
Primary Collateral but each is permitted to exercise remedies against the
Primary Collateral securing its respective Mortgage Loans, including with
respect to the Trustee, the Primary Collateral securing Mortgage Loans still
held by the Trustee, so long as such exercise does not impair the ability of the
other party to exercise its remedies against its Primary Collateral. If the
exercise of remedies by one party would impair the ability of the other party to
exercise its remedies with respect to the Primary Collateral securing the
Mortgage Loan or Mortgage Loans held by such party, then both parties have
agreed to forbear from exercising such remedies until the loan documents
evidencing and securing the relevant Mortgage Loans can be modified in a manner
that complies with the applicable Mortgage Loan Purchase Agreement to remove the
threat of impairment as a result of the exercise of remedies. Any reserve or
other cash collateral or letters of credit securing the Crossed-Mortgage Loans
shall be allocated between such Mortgage Loans in accordance with the Mortgage
Loan documents, or otherwise on a pro rata basis based upon their outstanding
Principal Balances. All other terms of the Mortgage Loans shall remain in full
force and effect, without any modification thereof. The Mortgagors set forth on
Schedule VIII hereto are intended third-party beneficiaries of the provisions
set forth in this paragraph and the preceding paragraph. The provisions of this
paragraph and the preceding paragraph may not be modified with respect to any
Mortgage Loan without the related Mortgagor's consent.
Any of the following document defects shall be conclusively
presumed materially and adversely to affect the interests of Certificateholders
in a Mortgage Loan and be a Material
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Document Defect: (a) the absence from the Mortgage File of the original signed
Mortgage Note, unless the Mortgage File contains a signed lost note affidavit
and indemnity that appears to be regular on its face; (b) the absence from the
Mortgage File of the original signed Mortgage (or with respect to the Xxxx
Xxxxxxx Tower Pari Passu Loan, a copy thereof) that appears to be regular on its
face, unless there is included in the Mortgage File a certified copy of the
Mortgage by the local authority with which the Mortgage was recorded; or (c) the
absence from the Mortgage File of the item called for by paragraph (viii) of the
definition of Mortgage File (or with respect to the Xxxx Xxxxxxx Tower Pari
Passu Loan, a copy thereof). If any of the foregoing Material Document Defects
is discovered by the Custodian (or the Trustee if there is no Custodian), the
Trustee (or as set forth in Section 2.3(a), the Master Servicer) will take the
steps described elsewhere in this section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the related
Seller for the cure of the document defect or repurchase or replacement of the
related Mortgage Loan.
If the related Seller disputes that a Material Document Defect
or Material Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with the related Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the related Seller to correct, repurchase or
cure has expired and (y) the Mortgage Loan is then in default and is then a
Specially Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing Standard, modify, workout or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, hereof, while
pursuing the repurchase claim. The related Seller has acknowledged and agreed
under the related Mortgage Loan Purchase Agreement that any modification of the
Mortgage Loan pursuant to a workout shall not constitute a defense to any
repurchase claim nor shall such modification and workout change the Purchase
Price due from the related Seller for any repurchase claim. In the event of any
such modification and workout, the related Seller has agreed under the related
Mortgage Loan Purchase Agreement to repurchase the Mortgage Loan as modified and
that the Purchase Price shall include any Work-Out Fee paid to the Special
Servicer up to the date of repurchase plus the present value (calculated at a
discount rate equal to the applicable Mortgage Rate) of the Work-Out Fee that
would have been payable to the Special Servicer in respect of such Mortgage Loan
if the Mortgage Loan performed in accordance with its terms to its Maturity
Date, provided that no amount shall be paid by the related Seller in respect of
any Work-Out Fee if a Liquidation Fee already comprises (or will comprise) a
portion of the Purchase Price. The related Seller shall be notified promptly and
in writing by (i) the Trustee of any notice that it receives that an Option
Holder intends to exercise its Option to purchase the Mortgage Loan in
accordance with and as described in Section 9.36 hereof and (ii) the Special
Servicer of any offer that it receives to purchase the applicable REO Property,
each in connection with such liquidation. Upon the receipt of such notice by the
related Seller, the related Seller shall then have the right to purchase the
related Mortgage Loan or REO Property, as applicable, from the Trust at a
purchase price equal to, in the case of clause (i) of the immediately preceding
sentence, the Option Purchase Price or, in the case of clause (ii) of the
immediately preceding sentence, the amount of such offer. Notwithstanding
anything to the contrary contained herein or in the related Mortgage Loan
Purchase Agreement, the right of any Option Holder to purchase such Mortgage
Loan shall be subject and subordinate to the Seller's right to purchase such
Mortgage Loan as described in the immediately preceding sentence. The related
Seller shall have five (5)
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Business Days to notify the Trustee or the Special Servicer, as applicable, of
its intent to so purchase the Mortgage Loan or related REO Property from the
date that it was notified of such intention to exercise such Option or of such
offer. The Special Servicer shall be obligated to provide the related Seller
with any appraisal or other third party reports relating to the Mortgaged
Property within its possession to enable the related Seller to evaluate the
related Mortgage Loan or REO Property. Any sale of the related Mortgage Loan, or
foreclosure upon such Mortgage Loan and sale of the related REO Property, to a
Person other than the related Seller shall be without (i) recourse of any kind
(either expressed or implied) by such Person against the related Seller and (ii)
representation or warranty of any kind (either expressed or implied) by the
related Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the related REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an event, the Master Servicer shall notify the related Seller of the
discovery of the Material Document Defect or Material Breach and the related
Seller shall have 90 days to correct or cure such Material Document Defect or
Material Breach or purchase the REO Property at the Purchase Price. If the
related Seller fails to correct or cure the Material Document Defect or Material
Breach or purchase the REO Property, then the provisions above regarding notice
of offers related to such REO Property and the related Seller's right to
purchase such REO Property shall apply. After a final liquidation of the
Mortgage Loan or REO Mortgage Loan, if a court of competent jurisdiction issues
a final order after the expiration of any applicable appeal period that the
related Seller is or was obligated to repurchase the related Mortgage Loan or
REO Mortgage Loan (a "Final Judicial Determination") or the related Seller
otherwise accepts liability, then, but in no event later than the Termination of
the Trust pursuant to Section 9.30 hereof, the related Seller will be obligated
to pay to the Trust the difference between any Liquidation Proceeds received
upon such liquidation (including those arising from any sale to the related
Seller) and the Purchase Price.
Notwithstanding anything to the contrary contained herein, in
connection with any sale or other liquidation of a Mortgage Loan or REO Property
as described in this Section 2.3, the Special Servicer shall not receive a
Liquidation Fee from the applicable Seller (but may collect such Liquidation Fee
from the related Liquidation Proceeds as otherwise provided herein); provided,
however, that in the event the applicable Seller is obligated to repurchase the
Mortgage Loan or REO Property after a final liquidation of such Mortgage Loan or
REO Property pursuant to the immediately preceding paragraph, an amount equal to
any Liquidation Fee (calculated on the basis of Liquidation Proceeds) payable to
the Special Servicer shall be included in the definition of "Purchase Price" in
respect of such Mortgage Loan or REO Property. Except as expressly set forth
above, no Liquidation Fee shall be payable in connection with a repurchase of a
Mortgage Loan by a Seller.
In any month in which the related Seller substitutes one or
more Qualifying Substitute Mortgage Loans for one or more Deleted Mortgage
Loans, the Master Servicer will determine the amount (if any) by which the
aggregate Principal Balance of all such Qualifying Substitute Mortgage Loans as
of the date of substitution is less than the aggregate Principal Balance of all
such Deleted Mortgage Loans (in each case after application of scheduled
principal portion of the monthly payments received in the month of
substitution). The Depositor shall cause the related Seller to deposit the
amount of such shortage into the Certificate Account
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in the month of substitution, without any reimbursement thereof. In addition,
the Depositor shall cause the related Seller to deposit into the Certificate
Account, together with such shortage, if any, an amount equal to interest on the
Deleted Mortgage Loans at a rate equal to the sum of the applicable Mortgage
Rate from the Due Date as to which interest was last paid up to the Due Date
next succeeding such substitution together with the amount of unreimbursed
Servicing Advances, amounts required to be paid to the Special Servicer but
remaining unpaid or unreimbursed, and interest on unreimbursed Advances with
respect to such Deleted Mortgage Loans at the Advance Rate. The Depositor shall
cause the related Seller, in the case of the Mortgage Loans, to give notice in
writing (accompanied by an Officer's Certificate as to the calculation of such
shortage) to the Trustee, the Paying Agent and the Master Servicer of such event
which notice shall be accompanied by an Officer's Certificate as to the
calculation of such shortfall.
If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Certificate Account as the account to which funds
in the amount of the Purchase Price are to be wired. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) In connection with any repurchase of or substitution
for a Mortgage Loan contemplated by this Section 2.3, the Trustee, the Master
Servicer and the Special Servicer shall each tender to the related Seller, upon
delivery to each of them of a receipt executed by such Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to the related
Seller or its designee in the same manner, and pursuant to appropriate forms of
assignment, substantially similar to the manner and forms pursuant to which
documents were previously assigned to the Trustee, but in any event, without
recourse, representation or warranty; provided that such tender by the Trustee
shall be conditioned upon its receipt from the Master Servicer of a Request for
Release. The Master Servicer shall, and is hereby authorized and empowered by
the Trustee to, prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements and
assignments contemplated by this Section 2.3, and the Trustee shall execute and
deliver any powers of attorney necessary to permit the Master Servicer to do so.
The Master Servicer shall, and is also hereby authorized and empowered by the
Trustee to, reconvey to the related Seller any deposits then held in an Escrow
Account relating to the Mortgage Loan being repurchased or substituted for. The
Master Servicer shall indemnify the Trustee for all costs, liabilities and
expenses (including attorneys' fees) incurred by the Trustee in connection with
any negligent or intentional misuse of any such powers of attorney by the Master
Servicer.
(c) The Mortgage Loan Purchase Agreements provide the sole
remedies available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Material Document Defect or Material Breach.
The parties hereunder understand that (i) Principal, as Seller under Mortgage
Loan Purchase Agreement III, will be providing the remedies with respect to the
Principal Loans, (ii) Xxxxx Fargo, as Seller under Mortgage Loan Purchase
Agreement II, will be providing the remedies with respect to the Xxxxx Fargo
Loans, (iii) BSCMI, as Seller under Mortgage Loan Purchase Agreement I, will be
providing the remedies with respect to the BSCMI Loans and (iv) MSMC, as Seller
under Mortgage Loan Purchase Agreement IV, will be providing the remedies with
respect to the MSMC Loans.
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(d) The Trustee or its designee (which, with the Master
Servicer's consent, may be the Master Servicer or which, with the Special
Servicer's consent, may be the Special Servicer) shall enforce the provisions of
this Section 2.3.
SECTION 2.4 REPRESENTATIONS AND WARRANTIES. The Depositor
hereby represents and warrants to the Master Servicer, the Special Servicer, the
Trustee (in its capacity as Trustee of the Trust), the Fiscal Agent and the
Paying Agent as of the Closing Date that:
(a) The Depositor is a corporation duly organized, validly
existing and in good standing under the laws governing its creation and
existence and has full corporate power and authority to own its property, to
carry on its business as presently conducted, to enter into and perform its
obligations under this Agreement, and to create the trust pursuant hereto;
(b) The execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Depositor; neither the execution and delivery of this Agreement, nor
the consummation of the transactions herein contemplated, nor compliance with
the provisions hereof, will conflict with or result in a breach of, or
constitute a default under, (i) any of the provisions of any law, governmental
rule, regulation, judgment, decree or order binding on the Depositor or its
properties; (ii) the certificate of incorporation or bylaws of the Depositor; or
(iii) the terms of any indenture or other agreement or instrument to which the
Depositor is a party or by which it is bound; neither the Depositor nor any of
its Affiliates is a party to, bound by, or in breach of or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which materially and
adversely affects or to the best knowledge of the Depositor may in the future
materially and adversely affect (i) the ability of the Depositor to perform its
obligations under this Agreement or (ii) the business, operations, financial
condition, properties or assets of the Depositor;
(c) The execution, delivery and performance by the
Depositor of this Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof;
(d) This Agreement has been duly executed and delivered by
the Depositor and, assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Depositor enforceable
against it in accordance with its terms;
(e) There are no actions, suits or proceedings pending or,
to the best of the Depositor's knowledge, threatened or likely to be asserted
against or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any other
matter which in the judgment of the Depositor will be determined adversely to
the Depositor and will, if determined adversely to the Depositor, materially and
adversely affect it or its business, assets, operations or condition, financial
or otherwise, or adversely affect its ability to perform its obligations under
this Agreement; and
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(f) Immediately prior to the consummation of the
transactions contemplated in this Agreement, the Depositor had good title to and
was the sole owner of each Mortgage Loan free and clear of any and all adverse
claims, charges or security interests (including liens arising under the federal
tax laws or the Employee Retirement Income Security Act of 1974, as amended).
SECTION 2.5 CONVEYANCE OF INTERESTS. Effective as of the
Closing Date, the Depositor does hereby transfer, assign, set over, deposit with
and otherwise convey to the Trustee, without recourse, in trust, all the right,
title and interest of the Depositor in and to (i) the REMIC I Regular Interests
in exchange for the REMIC II Interests and (ii) the REMIC II Regular Interests
in exchange for the REMIC III Certificates and the Excess Interest in exchange
for the Class N Grantor Trust Interest.
ARTICLE III
THE CERTIFICATES
SECTION 3.1 THE CERTIFICATES.
(a) The Certificates shall be in substantially the forms
set forth in the Exhibits attached hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement or as may in the reasonable judgment of the Trustee or the
Depositor be necessary, appropriate or convenient to comply, or facilitate
compliance, with applicable laws, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which any of
the Certificates may be listed, or as may, consistently herewith, be determined
by the officers executing such Certificates, as evidenced by their execution
thereof.
The Definitive Certificates shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which any of the Certificates may be listed, all as determined by
the officers executing such Certificates, as evidenced by their execution
thereof.
(b) The Class A Certificates will be issuable in
denominations of $25,000 initial Certificate Balance and in any whole dollar
denomination in excess thereof. The Class X, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N
Certificates will be issuable in denominations of $100,000 initial Certificate
Balance or initial Notional Amount (as applicable) or in any whole dollar
denomination in excess thereof. The Class R-I, Class R-II and Class R-III
Certificates will be issued in minimum Percentage Interests of 10% and integral
multiples of 10% in excess thereof.
(c) Each Certificate shall, on original issue, be executed
by the Certificate Registrar and authenticated by the Authenticating Agent upon
the order of the Depositor. No Certificate shall be entitled to any benefit
under this Agreement, or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
for herein, executed by an authorized officer of the Authenticating Agent by
manual
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signature, and such certification upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication. At any time and from time to time after the execution
and delivery of this Agreement, the Depositor may deliver Certificates to the
Authenticating Agent for authentication and the Authenticating Agent shall
authenticate and deliver such Certificates as in this Agreement provided and not
otherwise. In the event that additional Certificates need to be prepared at any
time subsequent to the Closing Date, the Depositor shall prepare, or cause to be
prepared, deliver, or cause to be delivered, at the Depositor's expense, any
such additional Certificates. With respect to the Class A, Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M and Class N Certificates that are issued in book-entry form, on the
Closing Date, the Authenticating Agent upon the order of the Depositor shall
authenticate Book-Entry Certificates that are issued to a Clearing Agency or its
nominee as provided in Section 3.7 against payment of the purchase price
thereof. With respect to the Class H, Class J, Class K, Class L, Class M and
Class N Certificates that are issued in definitive form, on the Closing Date,
the Authenticating Agent upon the order of the Depositor shall authenticate
Definitive Certificates that are issued to the registered holder thereof against
payment of the purchase price thereof.
SECTION 3.2 REGISTRATION. The Paying Agent shall be the
initial Certificate Registrar in respect of the Certificates and the Certificate
Registrar shall maintain books for the registration and for the transfer of
Certificates (the "Certificate Register"). The Certificate Registrar may resign
or be discharged or removed by the Paying Agent or the Certificateholders, and a
new successor may be appointed, in accordance with the procedures and
requirements set forth in Sections 7.6 and 7.7 hereof with respect to the
resignation, discharge or removal of the Paying Agent and the appointment of a
successor Paying Agent. The Certificate Registrar may appoint, by a written
instrument delivered to the Holders and the Trustee, any trust company to act as
co-registrar under such conditions as the Certificate Registrar may prescribe;
provided that the Certificate Registrar shall not be relieved of any of its
duties or responsibilities hereunder by reason of such appointment.
SECTION 3.3 TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) A Certificate may be transferred by the Holder thereof
only upon presentation and surrender of such Certificate at the Corporate Trust
Office, duly endorsed or accompanied by a written instrument of transfer duly
executed by such Holder or such Holder's duly authorized attorney in such form
as shall be satisfactory to the Certificate Registrar. Upon the transfer of any
Certificate in accordance with the preceding sentence, and subject to the
restrictions set forth in the other subsections of this Section 3.3, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver to the transferee, one or more new Certificates of the
same Class and evidencing, in the aggregate, the same aggregate initial
Certificate Balance, initial Notional Amount or Percentage Interest, as the case
may be, as the Certificate being transferred. No service charge shall be made to
a Certificateholder for any registration of transfer of Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any registration
or transfer of Certificates. The Certificate Registrar may decline to accept any
request for a registration of transfer of any Certificate during the period
beginning five calendar days prior to any Distribution Date.
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(b) A Certificate may be exchanged by the Holder thereof
for any number of new Certificates of the same Class, in authorized
denominations, representing in the aggregate the same initial Certificate
Balance, initial Notional Amount or Percentage Interest, as the case may be, as
the Certificate surrendered, upon surrender of the Certificate to be exchanged
at the offices of the Certificate Registrar duly endorsed or accompanied by a
written instrument of exchange duly executed by such Holder or such Holder's
duly authorized attorney in such form as is satisfactory to the Certificate
Registrar. Certificates delivered upon any such exchange will evidence the same
obligations, and will be entitled to the same rights and privileges, as the
Certificates surrendered. No service charge shall be made to a Certificateholder
for any exchange of Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any exchange of Certificates. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate, date and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(c) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless such
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws. If a transfer of any Non-Registered Certificate held
as a Definitive Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or one of its Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such transfer substantially in the form attached as Exhibit D-1 hereto
and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit D-2A hereto or as Exhibit
D-2B hereto; or (ii) an Opinion of Counsel satisfactory to the Certificate
Registrar to the effect that such transfer shall be made without registration
under the Securities Act, together with the written certification(s) as to the
facts surrounding such transfer from the Certificateholder desiring to effect
such transfer and/or such Certificateholder's prospective Transferee on which
such Opinion of Counsel is based (such Opinion of Counsel shall not be an
expense of the Trust or of the Depositor, the Master Servicer, the Special
Servicer, the Paying Agent, the Trustee or the Certificate Registrar in their
respective capacities as such). If a transfer of any interest in a
Non-Registered Certificate that constitutes a Book-Entry Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance of the Certificates or a transfer of any interest in
such Non-Registered Certificate by the Depositor or any of its Affiliates), then
the Certificate Owner desiring to effect such transfer shall be required to
obtain either (i) a certificate from such Certificate Owner's prospective
Transferee substantially in the form attached as Exhibit D-3A hereto or as
Exhibit D-3B hereto, or (ii) an Opinion of Counsel to the effect that such
transfer may be made without registration under the Securities Act. None of the
Depositor, the Fiscal Agent, the Paying Agent, the Trustee, the Master Servicer,
the Special Servicer or the Certificate Registrar is obligated to register or
qualify any Class of Non-Registered Certificates under the Securities Act or any
other securities law or to take any action not otherwise required under this
Agreement to permit the transfer of any Certificate. Any Certificateholder or
Certificate Owner desiring to effect a transfer of Non-Registered Certificates
or interests therein shall, and does hereby agree to, indemnify the Depositor,
each Underwriter, the Trustee, the Fiscal Agent, the Master Servicer, the
Special Servicer, the Paying Agent and the
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Certificate Registrar against any liability that may result if the transfer is
not exempt from such registration or qualification or is not made in accordance
with such federal and state laws.
(d) No transfer of a Non-Investment Grade Certificate or
Residual Certificate or any interest therein shall be made (A) to any employee
benefit plan or other retirement arrangement, including individual retirement
accounts and annuities, Xxxxx plans and collective investment funds and separate
accounts in which such plans, accounts or arrangements are invested, including,
without limitation, insurance company general accounts, that is subject to Title
I of ERISA or Section 4975 of the Code or any applicable federal, state or local
law ("Similar Laws") materially similar to the foregoing provisions of ERISA or
the Code (each, a "Plan"), (B) in book-entry form to an Institutional Accredited
Investor who is not also a Qualified Institutional Buyer or (C) to any Person
who is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a
Plan, unless: (i) in the case of a Non-Investment Grade Certificate that
constitutes a Book-Entry Certificate and is being sold to a Qualified
Institutional Buyer, the purchase and holding of such Certificate or interest
therein qualifies for the exemptive relief available under Sections I and III of
U.S. Department of Labor Prohibited Transaction Class Exemption ("PTCE") 95-60;
or (ii) in the case of a Non-Investment Grade Certificate held as a Definitive
Certificate, the prospective Transferee provides the Certificate Registrar with
a certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Certificate Registrar that such transfer will not constitute
or result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code or subject the Depositor, the Trustee, the Fiscal
Agent, the Paying Agent, the Master Servicer, the Special Servicer or the
Certificate Registrar to any obligation in addition to those undertaken in this
Agreement. Each Person who acquires any Non-Investment Grade Certificate or
Residual Certificate or interest therein (unless it shall have acquired such
Certificate or interest therein from the Depositor or an Affiliate thereof or
unless it shall have delivered to the Certificate Registrar the certification of
facts and Opinion of Counsel referred to in clause (ii) of the preceding
sentence) shall be required to deliver to the Certificate Registrar (or, in the
case of an interest in a Non-Investment Grade Certificate that constitutes a
Book-Entry Certificate, to the Certificate Owner that is transferring such
interest) a certification to the effect that: (i) it is neither a Plan nor any
Person who is directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with "plan
assets" of a Plan; or (ii) that, in the case of a Non-Investment Grade
Certificate, the purchase and holding of such Certificate or interest therein by
such person qualifies for the exemptive relief available under Sections I and
III of PTCE 95-60 or another exemption from the "prohibited transactions" rules
under ERISA by the U.S. Department of Labor or similar exemption under Similar
Laws.
(e) Each Person who has or who acquires any Ownership
Interest in a Residual Certificate shall be deemed by the acceptance or
acquisition of such Ownership Interest to have agreed to be bound by the
following provisions and to have irrevocably authorized the Paying Agent under
clause (F) below to deliver payments to a Person other than such Person and to
have irrevocably authorized the Certificate Registrar under clause (G) below to
negotiate the terms of any mandatory sale and to execute all instruments of
Transfer and to do all other things necessary in connection with any such sale.
The rights of such person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
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(A) (1) Each Person holding or acquiring any Ownership
Interest in a Residual Certificate shall be a Permitted Transferee and a
United States Tax Person and shall promptly notify the Certificate
Registrar of any change or impending change in its status as a Permitted
Transferee and (2) each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Qualified Institutional Buyer and
shall promptly notify the Certificate Registrar of any change or impending
change in its status as a Qualified Institutional Buyer.
(B) In connection with any proposed Transfer of any
Ownership Interest in a Residual Certificate, the Certificate Registrar
shall require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an affidavit
and agreement substantially in the form attached hereto as Exhibit E-1 (a
"Transfer Affidavit and Agreement") from the proposed Transferee, in form
and substance satisfactory to the Certificate Registrar, representing and
warranting, among other things, that such Transferee is a Permitted
Transferee, that it is a Qualified Institutional Buyer, that it is not
acquiring its Ownership Interest in the Residual Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for any
Person that is not a Permitted Transferee, that for so long as it retains
its Ownership Interest in a Residual Certificate, it will endeavor to
remain a Permitted Transferee, that it is a United States Tax Person, that
it is not a foreign permanent establishment or fixed base, within the
meaning of any applicable income tax treaty, of any United States Tax
Person, that it has historically paid its debts as they have come due and
will continue to do so in the future, that it understands that its tax
liability with respect to the Residual Certificates may exceed cash flows
thereon and it intends to pay such taxes as they come due, that it will not
cause income with respect to the Residual Certificates to be attributable
to a foreign permanent establishment or fixed base, within the meaning of
any applicable income tax treaty, of such proposed Transferee or any other
United States Tax Person, that it will provide the Certificate Registrar
with all information necessary to determine that the applicable paragraphs
of Section 13 of such Transfer Affidavit and Agreement are true or that
Section 13 is not applicable, and that it has reviewed the provisions of
this Section 3.3(e) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee under clause (B) above, if the
Certificate Registrar has actual knowledge that the proposed Transferee is
not a Permitted Transferee or is not a United States Tax Person, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected.
(D) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate shall agree (1) to require a Transfer Affidavit
and Agreement from any prospective Transferee to whom such Person attempts
to transfer its Ownership Interest in such Residual Certificate and (2) not
to transfer its Ownership Interest in such Residual Certificate unless it
provides to the Certificate Registrar a certificate substantially in the
form attached hereto as Exhibit E-2 among other things stating that (x) it
has conducted a reasonable investigation of the financial condition of the
proposed Transferee and, as a result
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of the investigation, the Transferor determines that the proposed
Transferee had historically paid its debts as they came due and found no
significant evidence that the proposed Transferee will not continue to pay
its debts as they come due in the future and, (y) it has no actual
knowledge that such prospective Transferee is not a Permitted Transferee,
is not a United States Tax Person, is a foreign permanent establishment or
fixed base, within the meaning of any applicable income tax treaty, of any
United States Tax Person or is a Person with respect to which income on the
Residual Certificate is attributable to a foreign permanent establishment
or fixed base, within the meaning of any applicable income tax treaty.
(E) Each Person holding or acquiring an Ownership Interest
in a Residual Certificate that is a "pass-through interest holder" within
the meaning of temporary Treasury Regulation Section 1.67-3T(a)(2)(i)(A) or
is holding an Ownership Interest in a Residual Certificate on behalf of a
"pass-through interest holder", by purchasing an Ownership Interest in such
Certificate, agrees to give the Certificate Registrar written notice of its
status as such immediately upon holding or acquiring such Ownership
Interest in a Residual Certificate.
(F) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the provisions of this Section 3.3(e)
or if any Holder of a Residual Certificate shall lose its status as a
Permitted Transferee or a United States Tax Person, then the last preceding
Holder of such Residual Certificate that was in compliance with the
provisions of this Section 3.3(e) shall be restored, to the extent
permitted by law, to all rights and obligations as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Fiscal Agent, the Master Servicer,
the Special Servicer, the Certificate Registrar or the Paying Agent shall
be under any liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 3.3(e)
or for making any payments due on such Certificate to the Holder thereof or
for taking any other action with respect to such Holder under the
provisions of this Agreement.
(G) If any purported Transferee shall become a Holder of a
Residual Certificate in violation of the restrictions in this Section
3.3(e), or if any Holder of a Residual Certificate shall lose its status as
a Permitted Transferee or a United States Tax Person, and to the extent
that the retroactive restoration of the rights and obligations of the prior
Holder of such Residual Certificate as described in clause (F) above shall
be invalid, illegal or unenforceable, then the Trustee shall have the
right, without notice to the Holder or any prior Holder of such Residual
Certificate, but not the obligation, to sell or cause to be sold such
Residual Certificate to a purchaser selected by the Trustee on such terms
as the Trustee may choose. Such noncomplying Holder shall promptly endorse
and deliver such Residual Certificate in accordance with the instructions
of the Certificate Registrar. Such purchaser may be the Certificate
Registrar itself or any Affiliate of the Certificate Registrar. The
proceeds of such sale, net of the commissions (which may include
commissions payable to the Certificate Registrar or its Affiliates),
expenses and taxes due, if any, will be remitted by the Certificate
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Registrar to such noncomplying Holder. The terms and conditions of any sale
under this clause (G) shall be determined in the sole discretion of the
Certificate Registrar, and the Certificate Registrar shall not be liable to
any Person having an Ownership Interest in a Residual Certificate as a
result of its exercise of such discretion.
The Master Servicer, on behalf of the Paying Agent, shall make available, upon
written request from the Paying Agent, to the Internal Revenue Service and those
Persons specified by the REMIC Provisions, all information necessary to compute
any tax imposed (A) as a result of the Transfer of an Ownership Interest in a
Residual Certificate to any Person who is not a Permitted Transferee, including
the information described in Treasury Regulations Sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is not a Permitted Transferee. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Master Servicer and
the Paying Agent for providing such information.
The provisions of this Section 3.3(e) may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee,
the Paying Agent, the Certificate Registrar, the Master Servicer, the Operating
Adviser and the Depositor the following:
(A) written notification from each Rating Agency to
the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating
Agency to qualify, downgrade or withdraw its then current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance
satisfactory to the Trustee, the Certificate Registrar and the
Depositor, to the effect that such modification of, addition
to or elimination of such provisions will not cause any of
REMIC I, REMIC II or REMIC III to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the
Transfer of any Residual Certificate to a Person which is not
a Permitted Transferee, or cause a Person other than the
prospective Transferee to be subject to a tax caused by the
Transfer of a Residual Certificate to a Person which is not a
Permitted Transferee.
(f) None of the Master Servicer, the Special Servicer, the
Trustee, the Fiscal Agent, the Paying Agent or the Certificate Registrar shall
have any liability to the Trust arising from a transfer of any Certificate in
reliance upon a certification, ruling or Opinion of Counsel described in this
Section 3.3; provided, however, that the Certificate Registrar shall not
register the transfer of a Residual Certificate if it has actual knowledge that
the proposed transferee does not meet the qualifications of a permitted Holder
of a Residual Certificate as set forth in Section 3.3(e); provided, further,
that the Certificate Registrar shall not register the transfer of a Noneconomic
Residual Interest if it shall have received notice that the Transferor has
determined, as a result of the investigation under Section 3.3(e)(D), that the
proposed Transferee has not paid its debts as they came due or that it will not
pay its debts as they come due in the future. The Certificate Registrar shall
have no obligation or duty to monitor, determine or
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inquire as to compliance with any restriction on transfer or exchange of
Certificates or any interest therein imposed under this Article III or under
applicable law other than to require delivery of the certifications and/or
opinions described in this Article III; provided, however, that the Certificate
Registrar shall not register the transfer of a Residual Certificate if it has
actual knowledge that the proposed transferee does not meet the qualifications
of a permitted Holder of a Residual Certificate as set forth in Section 3.3(e).
The Certificate Registrar shall have no liability for transfers (including
without limitation transfers made through the book-entry facilities of the
Depository or between or among Participants or Certificate Owners) made in
violation of applicable restrictions, provided that the Certificate Registrar
has satisfied its duties expressly set forth in Sections 3.3(c), 3.3(d) and
3.3(e).
(g) All Certificates surrendered for transfer and exchange
shall be physically cancelled by the Certificate Registrar, and the Certificate
Registrar shall hold such cancelled Certificates in accordance with its standard
procedures.
(h) The Certificate Registrar shall provide the Master
Servicer, the Special Servicer and the Depositor, upon written request, with an
updated copy of the Certificate Register within a reasonable period of time
following receipt of such request.
(i) Unless and until it is exchanged in whole for the
individual Certificates represented thereby, a Global Certificate representing
all of the Certificates of a Class may not be transferred, except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Clearing Agency or a nominee of such successor
Clearing Agency, and no such transfer to any such other Person may be
registered; provided that this subsection (i) shall not prohibit any transfer of
a Certificate of a Class that is issued in exchange for a Global Certificate of
the same Class pursuant to Section 3.9 below. Nothing in this subsection (i)
shall prohibit or render ineffective any transfer of a beneficial interest in a
Global Certificate effected in accordance with the other provisions of this
Section 3.3.
SECTION 3.4 MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (A) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (B) except in the case of
a mutilated Certificate so surrendered, there is delivered to the Certificate
Registrar such security or indemnity as may be required by it to save it
harmless, then, in the absence of notice to the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and interest in the Trust.
In connection with the issuance of any new Certificate under this Section 3.4,
the Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section 3.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
SECTION 3.5 PERSONS DEEMED OWNERS. Prior to presentation of
a Certificate for registration of transfer, the Master Servicer, the Special
Servicer, the Fiscal Agent, the
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Trustee, the Operating Adviser, the Paying Agent and any agent of the Master
Servicer, the Special Servicer, the Fiscal Agent, the Paying Agent, the Trustee
or the Operating Adviser may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions as provided in this Agreement and for all
other purposes whatsoever, and neither the Master Servicer, the Special
Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the Operating Adviser
nor any agent of the Master Servicer, the Special Servicer, the Fiscal Agent,
the Trustee, the Paying Agent or the Operating Adviser shall be affected by any
notice to the contrary.
SECTION 3.6 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES.
If three or more Certificateholders, a Certificateholder
holding all the Certificates of any Class of Certificates, the Master Servicer,
the Special Servicer, the Paying Agent, the Trustee, the Operating Adviser or
the Depositor (A) request in writing from the Certificate Registrar a list of
the names and addresses of Certificateholders and (B) in the case of a request
by Certificateholders, state that such Certificateholders desire to communicate
with other Certificateholders with respect to their rights under this Agreement
or under the Certificates, then the Certificate Registrar shall, within ten
Business Days after the receipt of such request, afford such Certificateholders,
the Master Servicer, the Special Servicer, the Depositor, the Paying Agent, the
Trustee or the Operating Adviser, as applicable, access during normal business
hours to a current list of the Certificateholders. The expense of providing any
such information requested by such Person shall be borne by the party requesting
such information and shall not be borne by the Certificate Registrar or the
Trustee. Every Certificateholder, by receiving and holding a Certificate, agrees
that the Certificate Registrar and the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
SECTION 3.7 BOOK-ENTRY CERTIFICATES.
(a) The Class A-1, Class A-2, Class A-3, Class A-4,
Class X-1, Class X-2, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M and Class N Certificates, upon
original issuance, each shall be issued in the form of one or more Certificates
representing the Book-Entry Certificates, to be delivered to the Certificate
Registrar, as custodian for The Depository Trust Company (the "Depository"), the
initial Clearing Agency, by, or on behalf of, the Depositor, provided, that any
Non-Investment Grade Certificates sold to Institutional Accredited Investors
that are not Qualified Institutional Buyers will be issued as Definitive
Certificates. The Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the Depository, as the
initial Clearing Agency, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Certificates,
except as provided in Section 3.9. Unless and until Definitive Certificates have
been issued to the Certificate Owners pursuant to Section 3.9:
(i) the provisions of this Section 3.7 shall be in
full force and effect with respect to each such Class;
(ii) the Depositor, the Master Servicer, the Paying
Agent, the Certificate Registrar and the Trustee may deal with the Clearing
Agency for all purposes
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(including the making of distributions on the Certificates) as the authorized
representative of the Certificate Owners;
(iii) to the extent that the provisions of this
Section 3.7 conflict with any other provisions of this Agreement, the provisions
of this Section 3.7 shall control with respect to each such Class; and
(iv) the rights of the Certificate Owners of each
such Class shall be exercised only through the Clearing Agency and the
applicable Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or the
Participants. Pursuant to the Depository Agreement, unless and until
Certificates are issued pursuant to Section 3.9, the initial Clearing Agency
will make book-entry transfers among the Participants and receive and transmit
distributions of principal and interest on the related Certificates to such
Participants.
(b) For purposes of any provision of this Agreement
requiring or permitting actions with the consent of, or at the direction of,
Holders of the Certificates evidencing a specified percentage of the aggregate
unpaid principal amount of Certificates, such direction or consent may be given
by the Clearing Agency at the direction of Certificate Owners owning
Certificates evidencing the requisite percentage of principal amount of
Certificates. The Clearing Agency may take conflicting actions with respect to
the Certificates to the extent that such actions are taken on behalf of the
Certificate Owners.
(c) The Certificates of each Class (other than the Residual
Certificates) initially sold in reliance on Rule 144A or with respect to the
Class E, Class F and Class G Certificates sold to Institutional Accredited
Investors shall be represented by the Rule 144A-IAI Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. The Class H, Class J, Class K, Class L, Class M and Class N
Certificates initially sold to Institutional Accredited Investors that are not
Qualified Institutional Buyers shall be represented by IAI Definitive
Certificates for such Class. The Certificates evidenced by any Rule 144A-IAI
Global Certificate or IAI Definitive Certificate shall be subject to certain
restrictions on transfer as set forth in Section 3.3 hereof and shall bear
legend(s) regarding such restrictions described herein.
(d) The Certificates of each Class (other than the Residual
Certificates) initially sold in offshore transactions in reliance on Regulation
S shall be represented by the Regulation S Temporary Global Certificate for such
Class, which shall be deposited with the Certificate Registrar, as custodian for
the Depository and registered in the name of Cede & Co. as nominee of the
Depository. Not earlier than the Release Date, beneficial interests in any
Regulation S Temporary Global Certificate shall be exchangeable for beneficial
interests in the Regulation S Permanent Global Certificate for such Class.
Beneficial interests in any Regulation S Temporary Global Certificate may be
held only through Euroclear Bank or Clearstream Bank; provided, however, that
such interests may be exchanged for interests in the Rule 144A-IAI Global
Certificate for such Class in accordance with the certification requirements
described in Section 3.7(f). The Regulation S Permanent Global Certificates
shall be deposited with the Certificate Registrar, as custodian for the
Depository and registered in the name of Cede & Co. as nominee of the
Depository.
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On or prior to the Release Date and on or prior to any
Distribution Date occurring prior to the Release Date, each Certificate Owner of
a Regulation S Temporary Global Certificate that holds a beneficial interest
therein on the Release Date or on any such Distribution Date, as the case may
be, must deliver to Euroclear Bank or Clearstream Bank (as applicable) a
Regulation S Certificate; provided, however, that any Certificate Owner that
holds a beneficial interest in a Regulation S Temporary Global Certificate on
the Release Date or on any such Distribution Date that has previously delivered
a Regulation S Certificate to Euroclear Bank or Clearstream Bank with respect to
its interest therein does not need to deliver any subsequent Regulation S
Certificate (unless the certificate previously delivered is no longer true as of
such subsequent date, and such Certificate Owner must promptly notify Euroclear
Bank or Clearstream Bank, as applicable, thereof). Euroclear Bank or Clearstream
Bank, as applicable, shall be required to promptly deliver to the Certificate
Registrar a certificate substantially in the form of Exhibit I hereto to the
effect that it has received the requisite Regulation S Certificates for each
such Class, and no Certificate Owner (or transferee from any such Certificate
Owner) shall be entitled to receive an interest in the Regulation S Permanent
Global Certificate for such Class or any payment or principal or interest with
respect to its interest in such Regulation S Temporary Global Certificate prior
to the Certificate Registrar receiving such certification from Euroclear Bank or
Clearstream Bank with respect to the portion of the Regulation S Temporary
Global Certificate owned by such Certificate Owner (and, with respect to an
interest in the applicable Regulation S Permanent Global Certificate, prior to
the Release Date). After the Release Date, distributions due with respect to any
beneficial interest in a Regulation S Temporary Global Certificate shall not be
made to the holders of such beneficial interests unless exchange for a
beneficial interest in the related Regulation S Permanent Global Certificate is
improperly withheld or refused. No interest in a Regulation S Global Certificate
may be held by or transferred to a U.S. Person (as defined in Regulation S)
except for exchanges for a beneficial interest in the Rule 144A-IAI Global
Certificate for such Class as described in Section 3.7(f).
(e) Except in the limited circumstances described below in
Section 3.9, owners of beneficial interests in Global Certificates shall not be
entitled to receive physical delivery of Definitive Certificates. The
Certificates are not issuable in bearer form. Upon the issuance of each Global
Certificate, the Depository or its custodian shall credit, on its internal
system, the respective principal amount of the individual beneficial interests
represented by such Global Certificate to the accounts of Persons who have
accounts with such Depository. Such accounts initially shall be designated by or
on behalf of the Underwriters and Placement Agents. Ownership of beneficial
interests in a Global Certificate shall be limited to Customers or Persons who
hold interests directly or indirectly through Customers. Ownership of beneficial
interests in the Global Certificates shall be shown on, and the transfer of that
ownership shall be effected only through, records maintained by the Depository
or its nominee (with respect to interests of Customers) and the records of
Customers (with respect to interests of Persons other than Customers).
So long as the Depository, or its nominee, is the registered
holder of a Global Certificate, the Depository or such nominee, as the case may
be, shall be considered the sole owner and holder of the Certificates
represented by such Global Certificate for all purposes under this Agreement and
the Certificates, including, without limitation, obtaining consents and waivers
thereunder, and the Trustee, the Paying Agent and the Certificate Registrar
shall not be affected by any notice to the contrary. Except under the
circumstance described in Section 3.9, owners of beneficial interests in a
Global Certificate will not be entitled to have any portions of
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such Global Certificate registered in their names, will not receive or be
entitled to receive physical delivery of Definitive Certificates in certificated
form and shall not be considered the owners or holders of the Global Certificate
(or any Certificates represented thereby) under this Agreement or the
Certificates. In addition, no Certificate Owner of an interest in a Global
Certificate shall be able to transfer that interest except in accordance with
the Depository's applicable procedures (in addition to those under this
Agreement and, if applicable, those of Euroclear Bank and Clearstream Bank).
(f) Any holder of an interest in a Regulation S Global
Certificate shall have the right, upon prior written notice to the Certificate
Registrar, Euroclear Bank or Clearstream Bank, as applicable, and the
Depository, in the form of an Exchange Certification (substantially in the form
of Exhibit H attached hereto), to exchange all or a portion of such interest (in
authorized denominations as set forth in Section 3.1(b)) for an equivalent
interest in the Rule 144A-IAI Global Certificate for such Class in connection
with a transfer of its interest therein to a transferee that is eligible to hold
an interest in such Rule 144A-IAI Global Certificate as described herein;
provided, however, that no Exchange Certification shall be required if any such
exchange occurs after the Release Date. Any holder of an interest in the Rule
144A-IAI Global Certificate shall have the right, upon prior written notice to
the Certificate Registrar, the Depository and Euroclear Bank or Clearstream
Bank, as applicable, in the form of an Exchange Certification, to exchange all
or a portion of such interest (in authorized denominations as set forth in
Section 3.1(b)) for an equivalent interest in the Regulation S Global
Certificate for such Class in connection with a transfer of its interest therein
to a transferee that is eligible to hold an interest in such Regulation S Global
Certificate as described herein; provided, however, that if such exchange occurs
prior to the Release Date, the transferee shall acquire an interest in a
Regulation S Temporary Global Certificate only and shall be subject to all of
the restrictions associated therewith described in Section 3.7(d). Following
receipt of any Exchange Certification or request for transfer, as applicable, by
the Certificate Registrar: (i) the Certificate Registrar shall endorse the
schedule to any Global Certificate representing the Certificate or Certificates
being exchanged to reduce the stated principal amount of such Global Certificate
by the denominations of the Certificate or Certificates for which such exchange
is to be made, and (ii) the Certificate Registrar shall endorse the schedule to
any Global Certificate representing the Certificate or Certificates for which
such exchange is to be made to increase the stated principal amount of such
Global Certificate by the denominations of the Certificate or Certificates being
exchanged therefor. The form of the Exchange Certification shall be available
from the Certificate Registrar.
SECTION 3.8 NOTICES TO CLEARING AGENCY. Whenever notice or
other communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to the related
Certificateholders pursuant to Section 3.9, the Paying Agent shall give all such
notices and communications specified herein to be given to Holders of the
Book-Entry Certificates to the Clearing Agency which shall give such notices and
communications to the related Participants in accordance with its applicable
rules, regulations and procedures.
SECTION 3.9 DEFINITIVE CERTIFICATES.
(a) Definitive Certificates will be issued to the owners of
beneficial interests in a Global Certificate or their nominees if (i) the
Clearing Agency notifies the Depositor and the
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Certificate Registrar in writing that the Clearing Agency is unwilling or unable
to continue as depositary for such Global Certificate and a qualifying successor
depositary is not appointed by the Depositor within 90 days thereof, (ii) the
Trustee has instituted or caused to be instituted or has been directed to
institute any judicial proceeding in a court to enforce the rights of the
Certificateholders under this Agreement and under such Global Certificate and
the Trustee has been advised by counsel that in connection with such proceeding
it is necessary or advisable for the Trustee or its custodian to obtain
possession of such Global Certificate, or (iii) after the occurrence of an Event
of Default, Certificate Owners representing a majority in aggregate outstanding
Certificate Balance of such Global Certificate advise the Clearing Agency
through the Participants in writing (and the Clearing Agency so advises the
Depositor, the Certificate Registrar and the Master Servicer in writing) that
the continuation in global form of the Certificates being evidenced by such
Global Certificate is no longer in their best interests; provided, that under no
circumstances will Definitive Certificates be issued to Certificate Owners of
the Regulation S Temporary Global Certificate. Upon notice of the occurrence of
any of the events described in the preceding sentence, the Certificate Registrar
shall notify the Clearing Agency and request the Clearing Agency to notify all
Certificate Owners, through the applicable Participants, of the occurrence of
the event and of the availability of Definitive Certificates to such Certificate
Owners requesting the same. Upon surrender to the Certificate Registrar of the
Global Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates. None of the Depositor, the Trustee, the
Paying Agent, the Certificate Registrar or the Fiscal Agent shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, all references herein to obligations imposed upon or to
be performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Certificate Registrar, to the extent applicable with respect to
such Definitive Certificates, and the Certificate Registrar and the Trustee and
the Paying Agent shall recognize the Holders of Definitive Certificates as
Certificateholders hereunder.
(b) Distributions of principal and interest on the
Definitive Certificates shall be made by the Paying Agent directly to holders of
Definitive Certificates in accordance with the procedures set forth in this
Agreement.
ARTICLE IV
ADVANCES
P&I Advances and Servicing Advances shall be made as provided
herein by the Master Servicer and, if the Master Servicer does not make such
Advances, by the Trustee, and if the Trustee does not make such Advances, by the
Fiscal Agent except to the extent that the Master Servicer, the Trustee or the
Fiscal Agent, as applicable, determines in accordance with Section 4.4 below,
that any such Advance would be a Nonrecoverable Advance.
SECTION 4.1 P&I ADVANCES BY MASTER SERVICER.
(a) On or prior to the Advance Report Date, the Master
Servicer shall notify the Trustee and the Paying Agent if the P&I Advance Amount
for such Distribution Date is
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greater than zero, and the Master Servicer shall make a P&I Advance in respect
of each Mortgage Loan of such amount no later than the Master Servicer
Remittance Date. It is understood that the obligation of the Master Servicer to
make such P&I Advances is mandatory and shall apply through any court appointed
stay period or similar payment delay resulting from any insolvency of the
Mortgagor or related bankruptcy, notwithstanding any other provision of this
Agreement. Notwithstanding the foregoing, the Master Servicer shall not be
required to make such P&I Advance, if the Master Servicer determines, in
accordance with Section 4.4 below, that any such P&I Advance would be a
Nonrecoverable Advance and shall not make such P&I Advance if such P&I Advance
if made would be a Nonrecoverable Advance as determined by the Special Servicer
in accordance with the Servicing Standard, in which event the Special Servicer
shall promptly direct the Master Servicer not to make such P&I Advance. Such
determination shall be conclusive and binding on the Trustee, the Fiscal Agent
and the Certificateholders. The Special Servicer shall not make P&I Advances
under this Agreement. If the Master Servicer fails to make a P&I Advance that it
is required to make under this Section 4.1, it shall promptly notify the Trustee
and the Paying Agent of such failure.
(b) If the Master Servicer determines that there is a P&I
Advance Amount for a Distribution Date, the Master Servicer shall on the related
Master Servicer Remittance Date either (A) deposit in the Certificate Account an
amount equal to the P&I Advance Amount or (B) utilize funds in the Certificate
Account being held for future distributions or withdrawals to make such Advance.
Any funds being held in the Certificate Account for future distribution or
withdrawal and so used shall be replaced by the Master Servicer from its own
funds by deposit in the Certificate Account on or before any future Master
Servicer Remittance Date to the extent that funds in the Certificate Account on
such Master Servicer Remittance Date shall be less than payments to the Paying
Agent or other Persons required to be made on such date.
(c) The LB-UBS Series 2003-C5 Master Servicer is obligated
to make Servicing Advances pursuant to the LB-UBS Series 2003-C5 Pooling and
Servicing Agreement with respect to the Xxxx Xxxxxxx Tower Pari Passu Loan, and
the Master Servicer shall not have any obligation to make Servicing Advances
with respect to that Mortgage Loan.
SECTION 4.1A P&I ADVANCES WITH RESPECT TO THE RSA PARI PASSU
LOAN AND THE XXXX XXXXXXX TOWER PARI PASSU LOAN.
With respect to the RSA Pari Passu Loan and the Xxxx Xxxxxxx
Tower Pari Passu Loan, the Master Servicer shall make its determination that a
P&I Advance previously made on the RSA Pari Passu Loan or the Xxxx Xxxxxxx Tower
Pari Passu Loan is a Nonrecoverable Advance or that any proposed P&I Advance, if
made, would constitute a Nonrecoverable Advance with respect to such RSA Pari
Passu Loan or Xxxx Xxxxxxx Tower Pari Passu Loan in accordance with Section 4.1
independently of any determination made by any Other Master Servicer under the
related Other Companion Loan Pooling and Servicing Agreement in respect of the
RSA Pari Passu Loan or the Xxxx Xxxxxxx Tower Pari Passu Loan, as applicable,
following deposit of the RSA Companion Loan or Xxxx Xxxxxxx Tower Companion
Loans into a commercial mortgage securitization trust, and the Other Master
Servicer shall make its own determination that it has made a P&I Advance that is
a Nonrecoverable Advance (both as defined in the related Other Companion Loan
Pooling and Servicing Agreement) or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable Advance (both as defined in the related Other
Companion Loan Pooling and Servicing Agreement) with respect to the RSA
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Companion Loan or the Xxxx Xxxxxxx Tower Companion Loans, as applicable, in
accordance with the related Other Companion Loan Pooling and Servicing
Agreement. The determination by either the Master Servicer or the Other Master
Servicer made on the earlier of (i) the Advance Report Date and (ii) the Other
Advance Report Date that any such P&I Advance is nonrecoverable shall be binding
on the Other Master Servicer and the Master Servicer, as applicable, the
Certificateholders and the holders of any securities relating to the RSA
Companion Loan or Xxxx Xxxxxxx Tower Companion Loans, as applicable. The Master
Servicer shall not make a P&I Advance with respect to the RSA Pari Passu Loan or
the Xxxx Xxxxxxx Tower Pari Passu Loan after its receipt of notice from the
related Other Master Servicer that it has determined that it has made a P&I
Advance that is a Nonrecoverable Advance on the RSA Companion Loan or Xxxx
Xxxxxxx Tower Companion Loans, as applicable, or that any proposed P&I Advance,
if made, would constitute a Nonrecoverable Advance pursuant to the relevant
Other Companion Loan Pooling and Servicing Agreement.
Following a securitization of the RSA Companion Loan, the
Master Servicer shall be required to deliver to the related Other Master
Servicer the following information: (i) any loan related information (in the
form received), including without limitation CMSA Reports relating to the RSA
Pari Passu Loan, applicable to a determination that an Advance is or would be a
Nonrecoverable Advance, within one Business Day of the Master Servicer's receipt
thereof, (ii) notice of any Servicing Advance it, the Trustee or the Fiscal
Agent makes with respect to the related Mortgage Loan within one Business Day of
the making of such Advance and (iii) notice of any determination that any
Servicing Advance is a Nonrecoverable Advance within one Business Day thereof.
SECTION 4.2 SERVICING ADVANCES. The Master Servicer and, if
the Master Servicer does not, the Trustee to the extent the Trustee receives
written notice from the Paying Agent that such Advance has not been made by the
Master Servicer, and if the Trustee does not, the Fiscal Agent (if the Fiscal
Agent has knowledge that such Advance is required to be made), shall make
Servicing Advances to the extent provided in this Agreement, except to the
extent that the Master Servicer, the Trustee or the Fiscal Agent, as applicable,
determines in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance and, subject to the last sentence of this Section 4.2,
except to the extent the Special Servicer determines in accordance with the
Servicing Standard and Section 4.4 that such Advance, if made, would be a
Nonrecoverable Advance, in which event the Special Servicer shall promptly
direct the Master Servicer not to make such Advance. Such determination by the
Master Servicer or the Special Servicer shall be conclusive and binding on the
Trustee, the Fiscal Agent and the Certificateholders and, in the case of any B
Note, the holder of the related B Note and, in the case of the RSA Pari Passu
Loan, the holder of the RSA Companion Loan. The Special Servicer shall not be
required to make Servicing Advances under this Agreement but may make such
Servicing Advances at its option in which event the Master Servicer shall
reimburse the Special Servicer for such Servicing Advance within 30 days of
receipt of a statement therefor. Promptly after discovering that the Master
Servicer has failed to make a Servicing Advance that the Master Servicer is
required to make hereunder, the Paying Agent shall promptly notify the Trustee
in writing of the failure by the Master Servicer to make such Servicing Advance.
The Master Servicer may make Servicing Advances in its own discretion if it
determines that making such Servicing Advance is in the best interest of the
Certificateholders, even if the Master Servicer or the Special Servicer has
determined, in accordance with Section 4.4 below, that any such Advance would be
a Nonrecoverable Advance.
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SECTION 4.3 ADVANCES BY THE TRUSTEE AND THE FISCAL AGENT.
(a) To the extent that the Master Servicer fails to make a
P&I Advance with respect to a Mortgage Loan by the Master Servicer Remittance
Date (other than a P&I Advance that the Master Servicer or the Special Servicer
determines is a Nonrecoverable Advance), the Trustee shall make such P&I Advance
with respect to such Mortgage Loan to the extent the Trustee receives written
notice from the Paying Agent not later than 10:00 a.m. (New York City time) on
the Distribution Date that such Advance has not been made by the Master Servicer
on the Master Servicer Remittance Date unless the Trustee determines that such
P&I Advance, if made, would be a Nonrecoverable Advance. To the extent that the
Trustee fails to make a P&I Advance required to be made by the Trustee hereunder
on the Distribution Date (other than a P&I Advance that the Master Servicer or
the Trustee determines is a Nonrecoverable Advance), the Fiscal Agent will
advance such P&I Advance unless the Fiscal Agent determines that any such P&I
Advance, if made, would be a Nonrecoverable Advance. To the extent that the
Fiscal Agent is required hereunder to make P&I Advances on the Mortgage Loans,
it shall deposit the amount thereof in the Distribution Account by 1:00 p.m.
(New York City time) on each such Distribution Date. The Paying Agent shall
notify the Trustee in writing as soon as practicable, but not later than 10:00
a.m. (New York City time) on the Distribution Date if the Master Servicer has
failed to make a P&I Advance.
(b) To the extent that the Master Servicer fails to make a
Servicing Advance by the date such Servicing Advance is required to be made
(other than a Servicing Advance that the Master Servicer determines is a
Nonrecoverable Advance), and a Responsible Officer of the Trustee receives
notice thereof, the Trustee shall make such Servicing Advance promptly, but in
any event, not later than five Business Days after notice thereof in accordance
with Section 4.2, unless the Trustee determines that such Servicing Advance, if
made, would be a Nonrecoverable Advance.
(c) To the extent that the Trustee fails to make a
Servicing Advance required to be made by the Trustee hereunder by the later of
(i) the date such Servicing Advance is required to be made and (ii) five
Business Days after the date the Trustee has received notice pursuant to
subsection (b) above, that such Servicing Advance has not been made by the
Master Servicer (other than a Servicing Advance that the Master Servicer or the
Trustee has determined to be a Nonrecoverable Advance), the Fiscal Agent will
advance such Servicing Advance, unless the Fiscal Agent determines that such
Servicing Advance, if made, would be a Nonrecoverable Advance.
The initial Trustee's failure to make any Advance required to
be made by it hereunder shall not constitute a default by the initial Trustee
hereunder if the initial Fiscal Agent makes such Advance at or before the time
when the Trustee was required to make such Advance.
SECTION 4.4 EVIDENCE OF NONRECOVERABILITY.
(a) If the Master Servicer or the Special Servicer
determines at any time, in its sole discretion, exercised in good faith, that
any Advance previously made or any proposed Advance, if made, would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate delivered to the Trustee, the Master Servicer, the Paying Agent, the
Special Servicer, the Operating Adviser and the Rating Agencies (and the holder
of
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the RSA Companion Loan if the Advance relates to the Loan Pair) by the
Business Day prior to the Distribution Date. Such Officer's Certificate shall
set forth the reasons for such determination of nonrecoverability, together
with, to the extent such information, report or document is in the Master
Servicer's or Special Servicer's possession, any related financial information
such as related income and expense statements, rent rolls, occupancy status,
property inspections and any Appraisals performed within the last 12 months on
the Mortgaged Property, and, if such reports are used by the Master Servicer or
the Special Servicer, as applicable, to determine that any P&I Advance or
Servicing Advance, as applicable, would be a Nonrecoverable Advance, any
engineers' reports, environmental surveys, internal final valuations or other
information relevant thereto which support such determination. If the Trustee or
the Fiscal Agent, as applicable, determines at any time that any portion of an
Advance previously made or a portion of a proposed Advance that the Trustee or
the Fiscal Agent, as applicable, is required to make pursuant to this Agreement,
if made, would constitute a Nonrecoverable Advance, such determination shall be
evidenced by an Officer's Certificate of a Responsible Officer of the Trustee or
the Fiscal Agent, as applicable, delivered to the Depositor, the Master
Servicer, the Special Servicer, the Paying Agent and the Operating Adviser
similar to the Officer's Certificate of the Master Servicer or the Special
Servicer described in the prior sentence. If the Special Servicer determines at
any time that any portion of an Advance previously made would constitute a
Nonrecoverable Advance, such determination shall be evidenced by an Officer's
Certificate of a Responsible Officer of the Special Servicer, delivered to the
Depositor, the Master Servicer, the Trustee, the Fiscal Agent, the Paying Agent
and the Operating Adviser similar to the Officer's Certificate of the Master
Servicer described above. The Trustee and the Fiscal Agent shall not be required
to make an Advance that the Master Servicer or the Special Servicer (or with
respect to a Mortgage Loan included in a Loan Pair or the Xxxx Xxxxxxx Tower
Pari Passu Loan, the related Other Master Servicer) has previously determined to
be a Nonrecoverable Advance. Notwithstanding any other provision of this
Agreement, none of the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent shall be obligated to, nor shall it, make any Advance or make any
payment that is designated in this Agreement to be an Advance, if it determines
in its good faith judgment that such Advance or such payment (including interest
accrued thereon at the Advance Rate) would be a Nonrecoverable Advance. The
Master Servicer's determination in accordance with the above provisions shall be
conclusive and binding on the Trustee, the Fiscal Agent, the Paying Agent and
the Certificateholders.
(b) The LB-UBS Series 2003-C5 Master Servicer, the LB-UBS
Series 2003-C5 Trustee or the LB-UBS Series 2003-C5 Fiscal Agent, as applicable,
shall be entitled to reimbursement for Pari Passu Loan Nonrecoverable Advances
(with, in each case, any accrued and unpaid interest thereon provided for under
the LB-UBS Series 2003-C5 Pooling and Servicing Agreement) in the manner set
forth in Section 5.2.
SECTION 4.5 INTEREST ON ADVANCES; CALCULATION OF
OUTSTANDING ADVANCES WITH RESPECT TO A MORTGAGE LOAN. Any unreimbursed Advance
funded from the Master Servicer's, the Special Servicer's, the Trustee's or the
Fiscal Agent's own funds shall accrue interest on a daily basis, at a per annum
rate equal to the Advance Rate, from and including the date such Advance was
made to but not including the date on which such Advance has been reimbursed;
provided, however, that neither the Master Servicer nor any other party shall be
entitled to interest accrued on the amount of any P&I Advance with respect to
any Mortgage
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Loan or any B Note for the period commencing on the date of such P&I Advance and
ending on the day on which the grace period applicable to the related
Mortgagor's obligation to make the related Scheduled Payment expires pursuant to
the related Mortgage Loan or B Note documents. All Late Collections on the Xxxx
Xxxxxxx Tower Pari Passu Loan in respect of interest shall, promptly following
receipt thereof, be applied by the Master Servicer to reimburse the interest
component of any P&I Advance outstanding with respect to the Xxxx Xxxxxxx Tower
Pari Passu Loan. Any party that makes a P&I Advance with respect to the Xxxx
Xxxxxxx Tower Pari Passu Loan shall provide to the LB-UBS Series 2003-C5 Master
Servicer monthly, at least two Business Days prior to the next succeeding Due
Date, written notice of whether (and, if any, how much) Advance Interest will be
payable on the interest component of a P&I Advance through the next succeeding
related Master Servicer Remittance Date. For purposes of determining whether a
P&I Advance is outstanding, amounts collected with respect to a particular
Mortgage Loan, any B Note or any REO Property and treated as collections of
principal or interest shall be applied first to reimburse the earliest P&I
Advance, and then each succeeding P&I Advance to the extent not inconsistent
with Section 4.6. The Master Servicer shall use efforts consistent with the
Servicing Standard to collect (but shall have no further obligation to collect),
with respect to the Mortgage Loans (and the RSA Companion Loan) that are not
Specially Serviced Mortgage Loans, Late Fees and default interest from the
Mortgagor in an amount sufficient to pay Advance Interest. The Master Servicer
shall be entitled to retain Late Fees and default interest paid by any Mortgagor
during a Collection Period with respect to any Mortgage Loan (other than the
portion of such Late Fee and default interest that relates to the period
commencing after the Servicing Transfer Event in respect of a Specially Serviced
Mortgage Loan, as to which the Special Servicer shall retain Late Fees and
default interest with respect to such Specially Serviced Mortgage Loan, subject
to the offsets set forth below) as additional servicing compensation only to the
extent such Late Fees and default interest exceed Advance Interest on a "pool
basis" for all Mortgage Loans other than Specially Serviced Mortgaged Loans. The
Special Servicer, with respect to any Specially Serviced Mortgage Loan, shall
(i) pay from any Late Fees and default interest collected from such Specially
Serviced Mortgage Loan (a) any outstanding and unpaid Advance Interest to the
Master Servicer, the Trustee or the Fiscal Agent, as applicable and (b) to the
Trust, any losses previously incurred by the Trust with respect to such
Specially Serviced Mortgage Loan and (ii) retain any remaining portion of such
Late Fees and default interest as additional Special Servicer Compensation.
SECTION 4.6 REIMBURSEMENT OF ADVANCES AND ADVANCE INTEREST.
(a) Advances made with respect to each Mortgage Loan, B
Note, Specially Serviced Mortgage Loan, REO Property or the RSA Companion Loan
(including Advances later determined to be Nonrecoverable Advances) and Advance
Interest thereon shall be reimbursed to the extent of the amounts identified to
be applied therefor in Section 5.2. The aggregate of the amounts available to
repay Advances and Advance Interest thereon pursuant to Section 5.2 collected in
any Collection Period with respect to Mortgage Loans, the RSA Companion Loan or
any B Note or Specially Serviced Mortgage Loans or REO Property shall be an
"Available Advance Reimbursement Amount."
(b) To the extent that Advances have been made on the
Mortgage Loans, the RSA Companion Loan, any B Note, any Specially Serviced
Mortgage Loans or any REO Mortgage Loans, the Available Advance Reimbursement
Amount with respect to any Determination Date shall be applied to reimburse (i)
the Fiscal Agent for any Advances
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outstanding to the Fiscal Agent with respect to any of such Mortgage Loans, RSA
Companion Loan, B Note, Specially Serviced Mortgage Loans or REO Mortgage Loans,
plus any Advance Interest owed to the Fiscal Agent with respect to such Advances
and then (ii) the Trustee for any Advances outstanding to the Trustee with
respect to any of such Mortgage Loans, RSA Companion Loan, B Note, Specially
Serviced Mortgage Loans or REO Mortgage Loans, plus any Advance Interest owed to
the Trustee with respect to such Advances and then (iii) the Master Servicer for
any Advances outstanding to the Master Servicer with respect to any of such
Mortgage Loans, RSA Companion Loan, B Note, Specially Serviced Mortgage Loans or
REO Mortgage Loans, plus any Advance Interest owed to the Master Servicer with
respect to such Advances and then (iv) the Special Servicer for any Advances
outstanding to the Special Servicer with respect to any of such Mortgage Loans,
RSA Companion Loan, B Note, Specially Serviced Mortgage Loans or REO Mortgage
Loans, plus any Advance Interest owed to the Special Servicer with respect to
such Advances. To the extent that any Advance Interest payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent with respect to
a Specially Serviced Mortgage Loan or REO Mortgage Loan cannot be recovered from
the related Mortgagor, the amount of such Advance Interest shall be payable to
the Fiscal Agent, the Trustee, the Special Servicer or the Master Servicer, as
the case may be, from amounts on deposit in the Certificate Account (or
sub-account thereof) or the Distribution Account pursuant to Section 5.2(a) or
Section 5.3(b)(ii). The Master Servicer's, the Special Servicer's, the Fiscal
Agent's and the Trustee's right of reimbursement under this Agreement for
Advances shall be prior to the rights of the Certificateholders (and, in the
case of the RSA Companion Loan, the holder thereof and, in the case of a B Note,
the holder thereof) to receive any amounts recovered with respect to such
Mortgage Loans, RSA Companion Loan, B Notes or REO Mortgage Loans.
(c) Advance Interest will be paid to the Fiscal Agent, the
Trustee, the Master Servicer and/or the Special Servicer (in accordance with the
priorities specified in the preceding paragraph) first, from Late Fees and
default interest collected from the Mortgage Loans during the Collection Period
during which the related Advance is reimbursed, and then from Excess Liquidation
Proceeds then available prior to payment from any other amounts. Late Fees and
default interest will be applied on a "pool basis" for non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis" (under which Late Fees and default
interest will be offset against the Advance Interest arising only from that
particular Specially Serviced Mortgage Loan) for Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage
Loans, as the case may be, then being reimbursed. Advance Interest payable to
the Master Servicer, the Special Servicer, the Fiscal Agent or the Trustee in
respect of Servicing Advances on the Loan Pair shall be allocated to the RSA
Pari Passu Loan and the RSA Companion Loan on a pro rata basis based upon the
Principal Balance thereof.
(d) Amounts applied to reimburse Advances shall first be
applied to reduce Advance Interest thereon that was not paid from amounts
specified in the preceding paragraph (c) and then to reduce the outstanding
amount of such Advances.
(e) To the extent that the Special Servicer incurs
out-of-pocket expenses, in accordance with the Servicing Standard, in connection
with servicing Specially Serviced Mortgage Loans, the Master Servicer shall
reimburse the Special Servicer for such expenditures within 30 days after
receiving an invoice and a report from the Special Servicer, subject to Section
4.4. With respect to each Collection Period, the Special Servicer shall deliver
such
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invoice and report to the Master Servicer by the following Determination Date.
All such amounts reimbursed by the Master Servicer shall be a Servicing Advance.
In the event that the Master Servicer fails to reimburse the Special Servicer
hereunder or the Master Servicer determines that such Servicing Advance was or,
if made, would be a Nonrecoverable Advance and the Master Servicer does not make
such payment, the Special Servicer shall notify the Master Servicer and the
Paying Agent in writing of such nonpayment and the amount payable to the Special
Servicer and shall be entitled to receive reimbursement from the Trust as an
Additional Trust Expense. The Master Servicer, the Paying Agent and the Trustee
shall have no obligation to verify the amount payable to the Special Servicer
pursuant to this Section 4.6(e) and circumstances surrounding the notice
delivered by the Special Servicer pursuant to this Section 4.6(e).
SECTION 4.7 FISCAL AGENT TERMINATION EVENT. "Fiscal Agent
Termination Event," wherever used herein, means any one of the following events:
(i) Any failure by the Fiscal Agent to remit to the
Paying Agent when due any required Advance for any Mortgage Loan; or
(ii) A decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Fiscal Agent and such decree or order shall have remained in force undischarged
or unstayed for a period of 60 days; or
(iii) The Fiscal Agent shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or relating to the Fiscal Agent or relating
to all or substantially all of its property; or
(iv) The Fiscal Agent shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(v) Reserved
(vi) The long-term unsecured debt of the Fiscal
Agent is rated below "Aa3" by Xxxxx'x or "AA-" by S&P (or "A+" by S&P if the
Fiscal Agent's short-term unsecured debt is rated at least "A-1" by S&P), unless
such other rating shall be acceptable to the Rating Agencies as evidenced by a
Rating Agency Confirmation; or
(vii) With respect to the initial Fiscal Agent,
LaSalle Bank National Association resigns or is removed pursuant to Section 7.6
hereof.
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SECTION 4.8 PROCEDURE UPON TERMINATION EVENT.
(a) On the date specified in a written notice of
termination given to the Fiscal Agent pursuant to Section 7.6(c), all authority,
power and rights of the Fiscal Agent under this Agreement, whether with respect
to the Mortgage Loans or otherwise, shall terminate and a successor Fiscal
Agent, if necessary, shall be appointed by the Trustee, with the consent of the
Depositor; provided that the successor Fiscal Agent meets the eligibility
requirements set forth in Section 7.5. The Fiscal Agent agrees to cooperate with
the Trustee in effecting the termination of the Fiscal Agent's responsibilities
and rights hereunder as Fiscal Agent.
(b) Notwithstanding the termination of its activities as
Fiscal Agent, the terminated Fiscal Agent shall continue to be entitled to
reimbursement to the extent provided in Section 4.6 but only to the extent such
reimbursement relates to the period up to and including the date on which the
Fiscal Agent's termination is effective. The Fiscal Agent shall be reimbursed
for all amounts owed to it hereunder on or prior to the effective date of its
termination from amounts on deposit in the Certificate Account.
SECTION 4.9 MERGER OR CONSOLIDATION OF FISCAL AGENT. Any
Person into which the Fiscal Agent may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or consolidation to
which the Fiscal Agent shall be a party, or any Person succeeding to the
business of the Fiscal Agent, shall be the successor of the Fiscal Agent
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding; provided that (i) the successor to the Fiscal Agent or
resulting Person shall have a net worth of not less than $100,000,000, (ii) such
successor or resulting Person shall be satisfactory to the Trustee, (iii) such
successor or resulting Person shall execute and deliver to the Trustee an
agreement, in form and substance satisfactory to the Trustee, which contains an
assumption by such Person of the due and punctual performance and observance of
each covenant and condition to be performed or observed by the Fiscal Agent
under this Agreement from and after the date of such agreement, (iv) the
successor or surviving entity meets the eligibility requirements set forth in
Section 7.5, and (v) the Fiscal Agent shall deliver to the Trustee an Officer's
Certificate and an Opinion of Counsel acceptable to the Trustee (which opinion
shall be at the expense of the Fiscal Agent) stating that all conditions
precedent to such action under this Section 4.9 have been completed and such
action is permitted by and complies with the terms of this Section 4.9.
SECTION 4.10 LIMITATION ON LIABILITY OF THE FISCAL AGENT AND
OTHERS. Neither the Fiscal Agent nor any of the directors, officers, employees,
agents or Controlling Persons of the Fiscal Agent shall be under any liability
to the Certificateholders, the Depositor or the Trustee for any action taken or
for refraining from the taking of any action in good faith, and using reasonable
business judgment pursuant to this Agreement, or for errors in judgment;
provided that this provision shall not protect the Fiscal Agent or any such
Person against any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in its performance of duties under
this Agreement. The Fiscal Agent and any director, officer, employee or agent of
the Fiscal Agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. The Fiscal Agent shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its obligations
under this Agreement. In such event, all legal expenses and costs of such action
shall be expenses and costs of the Trust, and the
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Fiscal Agent shall be entitled to be reimbursed therefor as Servicing Advances
as provided by this Agreement. The provisions of this Section 4.10 shall survive
the resignation or removal of the Fiscal Agent and the termination of this
Agreement.
SECTION 4.11 INDEMNIFICATION OF FISCAL AGENT. The Fiscal
Agent and each of its directors, officers, employees, agents and Controlling
Persons shall be indemnified by the Trust and held harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses incurred in
connection with any legal action relating to this Agreement other than any loss,
liability or expense incurred by reason of the Fiscal Agent's willful
misfeasance, bad faith or negligence in the performance of its duties hereunder.
The Depositor shall indemnify and hold harmless the Fiscal Agent, its directors,
officers, employees, agents or Controlling Persons from and against any loss,
claim, damage or liability, joint or several, and any action in respect thereof,
to which the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person may become subject under the 1933 Act, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum, Preliminary Prospectus Supplement, Final
Prospectus Supplement or Prospectus or arises out of, or is based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading and shall reimburse the
Fiscal Agent, its directors, officers, employees, agents or Controlling Person
for any legal and other expenses reasonably incurred by the Fiscal Agent or any
such director, officer, employee, agent or Controlling Person in investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action. The Fiscal Agent shall immediately notify the Depositor,
the Sellers, the Paying Agent, the Special Servicer, the Master Servicer and the
Trustee if a claim is made by a third party with respect to this Section 4.11
entitling the Fiscal Agent, its directors, officers, employees, agents or
Controlling Person to indemnification hereunder, whereupon the Depositor shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Fiscal Agent) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Depositor shall not affect any rights the Fiscal Agent, its
directors, officers, employees, agents or Controlling Person may have to
indemnification under this Section 4.11, unless the Depositor's defense of such
claim is materially prejudiced thereby. The indemnification provided herein
shall survive the termination of this Agreement and the resignation or removal
of the Fiscal Agent.
ARTICLE V
ADMINISTRATION OF THE TRUST
SECTION 5.1 COLLECTIONS.
(a) On or prior to the Closing Date, the Master Servicer
shall open, or cause to be opened, and shall thereafter maintain, or cause to be
maintained, a separate account or accounts, which accounts must be Eligible
Accounts, in the name of "Xxxxx Fargo Bank, National Association, as Master
Servicer for LaSalle Bank National Association, as Trustee for the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
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Series 2003-TOP11" (the "Certificate Account"). On or prior to the Closing Date,
the Master Servicer shall open, or cause to be opened, and shall maintain, or
cause to be maintained an additional separate account or accounts in the name of
"Xxxxx Fargo Bank, National Association, as Master Servicer for LaSalle Bank
National Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2003-TOP11" (the
"Interest Reserve Account").
(b) On or prior to the date the Master Servicer shall first
deposit funds in a Certificate Account or the Interest Reserve Account, as the
case may be, the Master Servicer shall give to the Paying Agent and the Trustee
prior written notice of the name and address of the depository institution(s) at
which such accounts are maintained and the account number of such accounts. The
Master Servicer shall take such actions as are necessary to cause the depository
institution holding the Certificate Account and the Interest Reserve Account to
hold such account in the name of the Master Servicer as provided in Section
5.1(a), subject to the Master Servicer's (or its Primary Servicer's or its
Sub-Servicer's) right to direct payments and investments and its rights of
withdrawal under this Agreement.
(c) The Master Servicer shall deposit, or cause to be
deposited, into the Certificate Account on the Business Day following receipt
(or, in the case of an inadvertent failure to make such deposit on the Business
Day following receipt, within 3 Business Days of discovery of such failure and
in the case of unscheduled remittances of principal or interest, on the Business
Day following identification of the proper application of such amounts), the
following amounts received by it (including amounts remitted to the Master
Servicer by the Special Servicer from an REO Account pursuant to Section 9.14),
other than in respect of interest and principal on the Mortgage Loans, the RSA
Companion Loan or any B Note due on or before the Cut-Off Date which shall be
remitted to the Depositor (provided that the Master Servicer (I) may retain
amounts otherwise payable to the Master Servicer as provided in Section 5.2(a)
rather than deposit them into the Certificate Account, (II) shall, rather than
deposit them in the Certificate Account, directly remit to the Primary Servicer
the applicable Primary Servicing Fees payable as provided in Section
5.2(a)(iv)(unless already retained by the applicable Primary Servicer), and
(III) shall, rather than deposit them in the Certificate Account, directly remit
the Excess Servicing Fees to the holders thereof as provided in Section
5.2(a)(iv))(unless already retained by the applicable holder of the excess
servicing rights)):
(A) Principal: all payments on account of
principal, including Principal Prepayments, the principal
component of Scheduled Payments, and any Late Collections in
respect thereof, on the Mortgage Loans, the RSA Companion
Loan and any B Note;
(B) Interest: subject to subsection (d) hereof, all
payments on account of interest on the Mortgage Loans, the
RSA Companion Loan and any B Note (minus any portion of any
such payment that is allocable to the period prior to the
Cut-Off Date which shall be remitted to the Depositor and
excluding Interest Reserve Amounts to be deposited in the
Interest Reserve Account pursuant to Section 5.1(d) below);
(C) Liquidation Proceeds: all Liquidation Proceeds
with respect to the Mortgage Loans, the RSA Companion Loan
and any B Note;
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(D) Insurance Proceeds: all Insurance Proceeds
other than proceeds to be applied to the restoration or
repair of the property subject to the related Mortgage or
released to the related Mortgagor in accordance with the
Servicing Standard, which proceeds shall be deposited by the
Master Servicer into an Escrow Account and not deposited in
the Certificate Account;
(E) Condemnation Proceeds: all Condemnation
Proceeds other than proceeds to be applied to the
restoration or repair of the property subject to the related
Mortgage or released to the related Mortgagor in accordance
with the Servicing Standard, which proceeds shall be
deposited by the Master Servicer into an Escrow Account and
not deposited in the Certificate Account;
(F) REO Income: all REO Income received from the
Special Servicer;
(G) Investment Losses: any amounts required to be
deposited by the Master Servicer pursuant to Section 5.1(e)
in connection with losses realized on Eligible Investments
with respect to funds held in the Certificate Account and
amounts required to be deposited by the Special Servicer
pursuant to Section 9.14(b) in connection with losses
realized on Eligible Investments with respect to funds held
in the REO Account;
(H) Advances: all P&I Advances unless made directly
to the Distribution Account; and
(I) Other: all other amounts, including Prepayment
Premiums, required to deposited in the Certificate Account
pursuant to this Agreement, including Purchase Proceeds of
any Mortgage Loans repurchased by a Seller or substitution
shortfall amounts (as described in the fifth paragraph of
Section 2.3(a)) paid by a Seller in connection with the
substitution of any Qualifying Substitute Mortgage Loans,
amounts with respect to the RSA Companion Loan and with
respect to any B Note, all other amounts received pursuant
to the cure and purchase rights set forth in the applicable
Intercreditor Agreement.
With respect to any A/B Mortgage Loan, the Master Servicer
shall establish and maintain one or more sub-accounts of the Certificate Account
(each an "A/B Loan Custodial Account") into which the Master Servicer shall
deposit any amounts described above that are required to be paid to the holder
of the related B Note pursuant to the terms of the related Intercreditor
Agreement, in each case on the same day as the deposit thereof into the
Certificate Account. Any A/B Loan Custodial Account shall be held in trust for
the benefit of the holder of the related B Note and shall not be part of any
REMIC Pool.
With respect to the Loan Pair, the Master Servicer shall
establish and maintain one or more sub-accounts of the Certificate Account
(collectively, the "RSA Companion Loan Custodial Account") into which the Master
Servicer shall deposit any amounts described above that are required to be paid
to the holder of the RSA Companion Loan pursuant to the terms of the Loan Pair
Intercreditor Agreement, in each case on the same day as the deposit thereof
into the Certificate Account. Each RSA Companion Loan Custodial Account shall be
held in trust for the benefit of the holder of the RSA Companion Loan and shall
not be part of any REMIC Pool.
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Remittances from any REO Account to the Master Servicer for
deposit in the Certificate Account shall be made by the Special Servicer no
later than the Special Servicer Remittance Date.
(d) The Master Servicer, with respect to each Distribution
Date occurring in January (other than in any leap year) and February of each
year, shall deposit in the Interest Reserve Account in respect of each Interest
Reserve Loan, an amount equal to one day's interest at the related REMIC I Net
Mortgage Rate (without any conversion to a 30/360 basis as provided in the
definition thereof) on the Scheduled Principal Balance of such Mortgage Loan as
of the Due Date in the month in which such Distribution Date occurs, to the
extent a Scheduled Payment or P&I Advance is timely made in respect thereof for
such Due Date (all amounts so deposited in any consecutive January and February
in respect of each Interest Reserve Loan, the "Interest Reserve Amount"). For
purposes of determining amounts to be deposited into the Interest Reserve
Account, the REMIC I Net Mortgage Rate used in this calculation for those months
will be calculated without regard to any adjustment for Interest Reserve Amounts
or the interest accrual basis as described in the proviso to the definition of
"REMIC I Net Mortgage Rate."
(e) Funds in the Certificate Account (including any A/B
Loan Custodial Accounts and the RSA Companion Loan Custodial Account) and
Interest Reserve Account may be invested and, if invested, shall be invested by,
and at the risk of, the Master Servicer in Eligible Investments selected by the
Master Servicer which shall mature, unless payable on demand, not later than the
Business Day immediately preceding the next Master Servicer Remittance Date, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Eligible Investments shall be made
in the name of "LaSalle Bank National Association, as Trustee for the Holders of
the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2003-TOP11 and the holder of the RSA Companion Loan or B
Note as their interests may appear." None of the Depositor, the Mortgagors, the
Paying Agent or the Trustee shall be liable for any loss incurred on such
Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Master Servicer as additional servicing
compensation and shall be subject to its withdrawal at any time from time to
time. The amount of any losses incurred in respect of any such investments shall
be for the account of the Master Servicer which shall deposit the amount of such
loss (to the extent not offset by income from other investments) in the
Certificate Account (and, solely to the extent that the loss is of an amount
credited to an A/B Loan Custodial Account or the RSA Companion Loan Custodial
Account, deposit to the related A/B Loan Custodial Account or the RSA Companion
Loan Custodial Account, as the case may be) or Interest Reserve Account, as the
case may be, out of its own funds immediately as realized. If the Master
Servicer deposits in or transfers to any Certificate Account, any A/B Loan
Custodial Account, the RSA Companion Loan Custodial Account or the Interest
Reserve Account, as the case may be, any amount not required to be deposited
therein or transferred thereto, it may at any time withdraw such amount or
retransfer such amount from the Certificate Account, such A/B Loan Custodial
Account, such RSA Companion Loan Custodial Account or the Interest Reserve
Account, as the case may be, any provision herein to the contrary
notwithstanding.
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(f) Except as expressly provided otherwise in this
Agreement, if any default occurs in the making of a payment due under any
Eligible Investment, or if a default occurs in any other performance required
under any Eligible Investment, the Paying Agent on behalf of and at the
direction of the Trustee may take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings; provided, however, that if the Master Servicer shall
have deposited in the Certificate Account, RSA Companion Loan Custodial Account,
the related A/B Loan Custodial Account and the Interest Reserve Account an
amount equal to all amounts due under any such Eligible Investment (net of
anticipated income or earnings thereon that would have been payable to the
Master Servicer as additional servicing compensation) the Master Servicer shall
have the sole right to enforce such payment or performance.
(g) Certain of the Mortgage Loans may provide for payment
by the Mortgagor to the Master Servicer of amounts to be used for payment of
Escrow Amounts for the account of the Mortgagor. The Master Servicer shall deal
with these amounts in accordance with the Servicing Standard, the terms of the
related Mortgage Loans and Section 8.3(e) hereof, and the Primary Servicer will
be entitled to hold any Escrow Accounts relating to the Mortgage Loans that it
services in accordance with the requirements set forth in Section 8.3(e). Within
20 days following the first anniversary of the Closing Date, the Master Servicer
shall deliver to the Trustee, the Paying Agent and the Operating Adviser, for
each Mortgage Loan set forth on Schedule VII hereto, a brief statement as to the
status of the work or project based on the most recent information provided by
the Mortgagor. Schedule VII sets forth those Mortgage Loans as to which an
upfront reserve was collected at closing in an amount in excess of $75,000 with
respect to specific immediate engineering work, completion of additional
construction, environmental remediation or similar one-time projects (but not
with respect to escrow accounts maintained for ongoing obligations, such as real
estate taxes, insurance premiums, ongoing property maintenance, replacements and
capital improvements or debt service). If the work or project is not complete in
accordance with the requirements of the escrow, the Master Servicer and the
Special Servicer (which shall itself consult with the Operating Adviser) will
consult with each other as to whether there exists a material default under the
underlying Mortgage Loan documents.
(h) In the case of the Mortgage Loans set forth on Schedule
XVII, as to which the Scheduled Payment is due in a calendar month on a Due Date
(including any grace period) that may occur after the end of the Collection
Period ending in such calendar month, the Master Servicer shall, unless the
Scheduled Payment is received before the end of such Collection Period, make a
P&I Advance by deposit to the Certificate Account on the Master Servicer
Remittance Date in an amount equal to the Scheduled Payment or the Assumed
Scheduled Payment, as applicable, and for purposes of the definition of
"Available Distribution Amount" and "Principal Distribution Amount," such
Scheduled Payment or Assumed Scheduled Payment, as applicable, shall be deemed
to have been received in such Collection Period.
SECTION 5.2 APPLICATION OF FUNDS IN THE CERTIFICATE ACCOUNT
AND INTEREST RESERVE ACCOUNT.
(a) The Master Servicer shall, from time to time, make
withdrawals from the Certificate Account and remit them by wire transfer prior
to 12:00 p.m., New York City time, on the related Master Servicer Remittance
Date in immediately available funds to the account
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specified in this Section or otherwise (w) to such account as it shall determine
from time to time of amounts payable to the Master Servicer from the Certificate
Account (or, insofar as they relate to a B Note, from the related A/B Loan
Custodial Account or, insofar as they relate to the RSA Companion Loan, from the
RSA Companion Loan Custodial Account) pursuant to clauses (i), (ii), (iii),
(iv), (vi), (viii) and (ix) below; (x) to the account specified in writing by
the Paying Agent from time to time of amounts payable to the Paying Agent and
the Trustee from the Certificate Account (and, insofar as they relate to a B
Note, from the related A/B Loan Custodial Account and, insofar as they relate to
the RSA Companion Loan, from the RSA Companion Loan Custodial Account) pursuant
to clauses (ii), (iii), (v), (vi), (xi), (xii) and (xiii) below; and (y) to the
Special Servicer from time to time of amounts payable to the Special Servicer
from such Certificate Account (or, insofar as they relate to a B Note, from the
related A/B Loan Custodial Account or, insofar as they relate to the RSA
Companion Loan, from the RSA Companion Loan Custodial Account) pursuant to
clauses (i), (iv), (vi), (vii) and (ix) below of the following amounts, from the
amounts specified for the following purposes:
(i) Fees: the Master Servicer shall pay (A) to itself Late
Fees (in excess of amounts used to pay Advance Interest) relating to Mortgage
Loans or B Notes which are not Specially Serviced Mortgage Loans, Modification
Fees relating to Mortgage Loans, the RSA Companion Loan or B Notes which are not
Specially Serviced Mortgage Loans as provided in Section 8.18, 50% of any
assumption fees payable under Section 8.7(a) or 8.7(b), 100% of any extension
fees payable under Section 8.10 or other fees payable to the Master Servicer
hereunder and (B) directly to the Special Servicer, 50% of any assumption fees
as provided in Section 8.7(a), 50% of any assumption fees as provided in Section
8.7(b), all assumption fees relating to Specially Serviced Mortgage Loans,
Modification Fees and other fees collected on Specially Serviced Mortgage Loans,
in each case to the extent provided for herein from funds paid by the applicable
Mortgagor, and Late Fees collected on Specially Serviced Mortgage Loans in
excess of Advance Interest (which Advance Interest the Master Servicer shall
retain to the extent provided for in this Agreement) to the extent the Special
Servicer is entitled to such Late Fees under Section 4.5;
(ii) Servicing Advances (including amounts later determined
to be Nonrecoverable Advances): (A) in the case of all Mortgage Loans, the RSA
Companion Loan and any B Note, subject to clause (B) below and Section 5.2(d),
to reimburse or pay to the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent, pursuant to Section 4.6, (x) prior to a Final Recovery
Determination or determination in accordance with Section 4.4 that any Advance
is a Nonrecoverable Advance, Servicing Advances on the related Mortgage Loan,
the RSA Companion Loan and any B Note from payments made by the related
Mortgagor of the amounts to which a Servicing Advance relates or from REO Income
from the related REO Property or from Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds or Purchase Proceeds and, to the extent that a
Servicing Advance has been or is being reimbursed, any related Advance Interest
thereon first, from Late Fees and default interest collected during the
Collection Period during which such Advance is reimbursed, and then from Excess
Liquidation Proceeds then available and then from any other amounts on deposit
in the Certificate Account; provided that, Late Fees and default interest will
be applied on a "pool basis" for non-Specially Serviced Mortgage Loans (and the
RSA Companion Loan and any B Note) and on a "loan-by-loan basis" (under which
Late Fees and default interest will be offset against the Advance Interest
arising only from the particular Specially Serviced Mortgage Loan) for Specially
Serviced Mortgage Loans, as the case may be, to the payment of Advance Interest
on all Advances on such non-
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Specially Serviced Mortgage Loans (and the RSA Companion Loan and any B Note) or
such Specially Serviced Mortgage Loans, as the case may be, then being
reimbursed or (y) after a Final Recovery Determination or determination that any
Servicing Advance on the related Mortgage Loan, the RSA Companion Loan or any B
Note is a Nonrecoverable Advance, any Servicing Advances made on the related
Mortgage Loan, the related B Note, the RSA Companion Loan or REO Property from
any funds on deposit in the Certificate Account (regardless of whether such
amount was recovered from the applicable Mortgage Loan or REO Property) and pay
Advance Interest thereon first, from Late Fees and default interest collected
during the Collection Period during which such Advance is reimbursed (applying
such Late Fees and default interest on a "pool basis" for all non-Specially
Serviced Mortgage Loans (and the RSA Companion Loan and any B Note) and on a
"loan-by-loan basis", as described above, for all Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans (and the RSA Companion Loan and any B
Note) or such Specially Serviced Mortgage Loans, as the case may be, then being
reimbursed), then from Excess Liquidation Proceeds then available and then from
any other amounts on deposit in the Certificate Account and (B) in the case of
the Xxxx Xxxxxxx Tower Pari Passu Loan and from any funds on deposit in the
Certificate Account, to reimburse the LB-UBS Series 2003-C5 Master Servicer, the
LB-UBS Series 2003-C5 Special Servicer, the LB-UBS Series 2003-C5 Trustee and
the LB-UBS Series 2003-C5 Fiscal Agent for Pari Passu Loan Nonrecoverable
Advances and any accrued and unpaid interest thereon provided for under the
LB-UBS Series 2003-C5 Pooling and Servicing Agreement;
(iii) P&I Advances (including amounts later to be determined
to be Nonrecoverable Advances): in the case of all Mortgage Loans, subject to
Section 5.2(d), to reimburse or pay to the Master Servicer, the Trustee and the
Fiscal Agent, pursuant to Section 4.6, (x) if prior to a Final Recovery
Determination or determination that any Advance is a Nonrecoverable Advance, any
P&I Advances from Late Collections made by the Mortgagor of the amounts to which
a P&I Advance relates, or REO Income from the related REO Property or from
Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds or Purchase
Proceeds and, to the extent that a P&I Advance has been or is being reimbursed,
any related Advance Interest thereon, first, from Late Fees and default interest
collected during the Collection Period during which such Advance is reimbursed,
and then from Excess Liquidation Proceeds then available and then from any other
amounts on deposit in the Certificate Account; provided that, Late Fees and
default interest will be applied on a "pool basis" for non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis" (under which Late Fees and default
interest will be offset against the Advance Interest arising only from the
particular Specially Serviced Mortgage Loan) for Specially Serviced Mortgage
Loans, as the case may be, to the payment of Advance Interest on all Advances on
such non-Specially Serviced Mortgage Loans or such Specially Serviced Mortgage
Loans, as the case may be, then being reimbursed or (y) if after a Final
Recovery Determination or determination in accordance with Section 4.4 that any
P&I Advance on the related Mortgage Loan is a Nonrecoverable Advance, any P&I
Advances made on the related Mortgage Loan or REO Property from any funds on
deposit in the Certificate Account (regardless of whether such amount was
recovered from the applicable Mortgage Loan or REO Property) and any Advance
Interest thereon, first, from Late Fees and default interest collected during
the Collection Period during which such Advance is reimbursed (applying such
Late Fees and default interest on a "pool basis" for all non-Specially Serviced
Mortgage Loans and on a "loan-by-loan basis", as described above, for all
Specially Serviced Mortgage Loans, as the case may be, to the payment of Advance
Interest on all Advances on such non-Specially
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Serviced Mortgage Loans or such Specially Serviced Mortgage Loans, as the case
may be, then being reimbursed), then from Excess Liquidation Proceeds then
available and then from any other amounts on deposit in the Certificate Account;
(iv) Servicing Fees and Special Servicer Compensation: to
pay to itself the Master Servicing Fee, subject to reduction for any
Compensating Interest, to pay to the Special Servicer the Special Servicing Fee
and the Work-Out Fee, to pay to the Primary Servicer (or the Master Servicer)
the Primary Servicing Fees, and to pay to the parties entitled thereto the
Excess Servicing Fees (to the extent not previously retained by any of such
parties);
(v) Trustee Fee and Paying Agent Fee: to pay to the
Distribution Account for withdrawal by the Paying Agent, the Paying Agent Fee
and the Trustee Fee;
(vi) Expenses of Trust: to pay to the Person entitled
thereto any amounts specified herein to be Additional Trust Expenses (at the
time set forth herein or in the definition thereof), the payment of which is not
more specifically provided for in this Agreement; provided that the Depositor
shall not be entitled to receive reimbursement for performing its duties under
this Agreement;
(vii) Liquidation Fees: upon the occurrence of a Final
Recovery Determination to pay to the Special Servicer from the Certificate
Account, the amount certified by the Special Servicer equal to the Liquidation
Fee, to the extent provided in Section 9.11 hereof;
(viii) Investment Income: to pay to itself income and gain
realized on the investment of funds deposited in such Certificate Account
(including any A/B Loan Custodial Accounts and the RSA Companion Loan Custodial
Account);
(ix) Prepayment Interest Excesses: to pay to the Master
Servicer the amount of the aggregate Prepayment Interest Excesses relating to
Mortgage Loans which are not Specially Serviced Mortgage Loans (to the extent
not offset by Prepayment Interest Shortfalls relating to such Mortgage Loans);
and to pay to the Special Servicer the amount of the aggregate Prepayment
Interest Excesses relating to Specially Serviced Mortgage Loans which have
received voluntary Principal Prepayments (not from Liquidation Proceeds or from
modifications to Specially Serviced Mortgage Loans), to the extent not offset by
Prepayment Interest Shortfalls relating to such Mortgage Loans.
(x) Correction of Errors: to withdraw funds deposited in
the Certificate Account in error;
(xi) Distribution Account: to make payment on each Master
Servicer Remittance Date of the remaining amounts in the Certificate Account
(including any Excess Interest) to the Distribution Account (or in the case of
any Excess Interest, deposit to the Excess Interest Sub-account under Section
5.3(b)) other than amounts held for payment in future periods or pursuant to
clause (xii) below;
(xii) Reserve Account: to make payment on each Master
Servicer Remittance Date to the Reserve Account, any Excess Liquidation Proceeds
(subject to Section 4.6(c)); and
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(xiii) Clear and Terminate: to clear and terminate the
Certificate Account pursuant to Section 8.29;
provided, however, that in the case of any B Note:
(A) the Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account
to the portion of the Certificate Account that does not
constitute the A/B Loan Custodial Account, of amounts
necessary for the payments or reimbursement of amounts
described in any one or more of clauses (i), (ii), (iii),
(iv), (vi), (vii), (viii), (ix) and (xii) above, but only
insofar as the payment or reimbursement described therein
arises from or is related solely to such A/B Mortgage Loan and
is allocable to the A/B Mortgage Loan pursuant to this
Agreement or the related Intercreditor Agreement, and the
Master Servicer shall also be entitled to make transfers from
time to time, from the related A/B Loan Custodial Account to
the portion of the Certificate Account that does not
constitute the A/B Loan Custodial Account, of amounts
transferred to such related A/B Loan Custodial Account in
error, and amounts necessary for the clearing and termination
of the Certificate Account pursuant to Section 8.29;
(B) the Master Servicer shall be entitled to make transfers
from time to time, from the related A/B Loan Custodial Account
to the portion of the Certificate Account that does not
constitute the A/B Loan Custodial Account, of amounts not
otherwise described in clause (A) above to which the holder of
an A Note is entitled under the A/B Mortgage Loan and the
related Intercreditor Agreement (including in respect of
interest, principal and Prepayment Premiums in respect of the
A Note (whether or not by operation of any provision of the
related Intercreditor Agreement that entitles the holder of
such A Note to receive remittances in amounts calculated
without regard to any modification, waiver or amendment of the
economic terms of such A Note)); and
(C) the Master Servicer shall on each Master Servicer
Remittance Date remit to the holder of the related B Note all
amounts on deposit in such A/B Loan Custodial Account (net of
amounts permitted or required to be transferred therefrom as
described in clauses (A) and/or (B) above), to the extent that
the holder of such B Note is entitled thereto under the
related Intercreditor Agreement (including by way of the
operation of any provision of the related Intercreditor
Agreement that entitles the holder of the B Note to
reimbursement of cure payments made by it).
and provided further, however, that in the case of the RSA Companion Loan:
(A) the Master Servicer shall be entitled to make transfers
from time to time, from the RSA Companion Loan Custodial
Account to the portion of the Certificate Account that does
not constitute the RSA Companion Loan Custodial Account, of
amounts necessary for the payments or reimbursement of amounts
described in any one or more of clauses (i), (ii), (iii),
(iv), (v), (vi), (vii), (viii), (ix) and (xii) above, but only
insofar as the payment or reimbursement described therein
arises from or is related solely to the Loan Pair and is
allocable to the RSA
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Companion Loan, and the Master Servicer shall also be
entitled to make transfers from time to time, from the RSA
Companion Loan Custodial Account to the portion of the
Certificate Account that does not constitute the RSA
Companion Loan Custodial Account, of amounts transferred to
such RSA Companion Loan Custodial Account in error, and
amounts necessary for the clearing and termination of the
Certificate Account pursuant to Section 8.29; provided,
however that the Master Servicer shall not be entitled to
make transfers from the portion of the Certificate Account
that does not constitute the RSA Companion Loan Custodial
Account (other than amounts previously transferred from the
RSA Companion Loan Custodial Account in accordance with this
clause (A)) of amounts necessary for the payment or
reimbursement of amounts described in any one or more of the
foregoing clauses;
(B) the Master Servicer shall be entitled to make transfers
from time to time, from the RSA Companion Loan Custodial
Account to the portion of the Certificate Account that does
not constitute any RSA Companion Loan Custodial Account, of
amounts not otherwise described in clause (A) above to which
the holder of the RSA Pari Passu Loan is entitled under the
Loan Pair Intercreditor Agreement (including in respect of
interest, principal and Prepayment Premiums); and
(C) the Master Servicer shall, on the later of (i) one (1)
Business Day after the related Determination Date or (ii) one
(1) Business Day after receipt from the related Primary
Servicer, remit to the holder of the RSA Companion Loan all
amounts on deposit in the RSA Companion Loan Custodial Account
(net of amounts permitted or required to be transferred
therefrom as described in clauses (A) and/or (B) above), to
the extent that the holder of the RSA Companion Loan is
entitled thereto under the Loan Pair Intercreditor Agreement.
No decision by the Master Servicer, the Trustee or the Fiscal
Agent under either this Section 5.2(a) or Section 5.2(d), to defer the
reimbursement of Advances and/or Advance Interest shall be construed as an
agreement by the Master Servicer to subordinate (in respect of realizing
losses), to any Class of Certificates, such party's right to such reimbursement
during such period of deferral.
Expenses incurred with respect to an A/B Mortgage Loan shall
be allocated in accordance with the related Intercreditor Agreement. The Master
Servicer shall keep and maintain a separate accounting for each Mortgage Loan
and B Note for the purpose of justifying any withdrawal or transfer from the
Certificate Account and any A/B Loan Custodial Account. If funds collected in
respect of the A Notes are insufficient to pay the Master Servicing Fee, then
the Master Servicer shall be entitled to withdraw the amount of such shortfall
from the collections on, and other proceeds of, the B Note that are held in the
related A/B Loan Custodial Account. The Master Servicer shall not be permitted
to withdraw any funds from the portion of the Certificate Account that does not
constitute the A/B Loan Custodial Account unless there are no remaining funds in
the related A/B Loan Custodial Account available and required to be paid in
accordance with the related Intercreditor Agreement.
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Expenses incurred with respect to the Loan Pair shall be
allocated in accordance with the Loan Pair Intercreditor Agreement. The Master
Servicer shall keep and maintain a separate accounting for each Mortgage Loan
and the RSA Companion Loan for the purpose of justifying any withdrawal or
transfer from the Certificate Account and the RSA Companion Loan Custodial
Account.
If in connection with the workout of any Mortgage Loan, the
terms of the workout specifically provide that any Advance (and interest accrued
thereon at the Advance Rate) outstanding and remaining unpaid on the effective
date of the workout (the "Advance Reimbursement Amount") is to be repaid in full
within 24 months of the date of the workout, the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, shall be reimbursed
for such Advance Reimbursement Amount in accordance with the terms of the
workout; provided, however, that if the terms of the workout do not provide that
interest at the Advance Rate is to be paid monthly on the amount of the
outstanding Advance Reimbursement Amount, the relevant party shall be entitled
to receive from any amounts received with respect to that Mortgage Loan such
additional amount each month as equals the amount by which one month's interest
at the Advance Rate on the remaining unpaid balance of the Advance Reimbursement
Amount exceeds the amount of interest actually paid that month on the Advance
Reimbursement Amount under the terms of the workout. If the terms of the workout
of the Mortgage Loan do not provide for the reimbursement of the Advance
Reimbursement Amount as provided in the preceding sentence and such amounts are
not otherwise Nonrecoverable Advances, the relevant party shall be entitled to
reimbursement of the Advance Reimbursement Amount from any amounts received with
respect to the Mortgage Loan; provided, however, that the total reimbursement
amount that may be received by such party in any month may not exceed the
greatest of (i) 1/24th of the amount of the Advance Reimbursement Amount, plus
one month's interest at the Advance Rate on the remaining unpaid balance of the
Advance Reimbursement Amount, (ii) the interest that shall have accrued for the
next succeeding Distribution Date on (x) all Classes of Certificates that are
not then rated and (y) the most subordinate Class of Certificates that is then
rated below investment grade and has a nonzero Certificate Balance and (iii) in
the 24th month of the application of this provision, the entire portion of the
Advance Reimbursement Amount that has not theretofore been reimbursed, together
with interest thereon at the Advance Rate; provided, further, that such party
may in its sole discretion provide for the repayment of the Advance
Reimbursement Amount owed to it over a period of longer than 24 months if it
determines, in accordance with the Servicing Standard, in the case of the Master
Servicer and the Special Servicer, that doing so is in the best interests of
Certificateholders. The foregoing limitations provided for in this paragraph
shall not apply to any Advance or interest thereon that is determined to
constitute a Nonrecoverable Advance, which amounts are reimbursable pursuant to
the applicable provisions of clauses (a) and (d) of Section 5.2. The fact that a
decision to recover any Advance over such period, or not to do so, may benefit
the Certificateholders of one or more Classes to the detriment of the
Certificateholders of one or more other Classes shall not, with respect to the
Master Servicer or the Special Servicer, as applicable, constitute a violation
of the Servicing Standard or, with respect to the Trustee or the Fiscal Agent,
constitute a breach of any fiduciary duty or other contractual duty owed
hereunder to the Certificateholders.
(b) Scheduled Payments due in a Collection Period
succeeding the Collection Period relating to such Master Servicer Remittance
Date, Principal Prepayments received after the related Collection Period, or
other amounts not distributable on the related Distribution Date,
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shall be held in the Certificate Account (or sub-account thereof) and shall be
distributed on the Master Servicer Remittance Date or Dates to which such
succeeding Collection Period or Periods relate, provided, however, that as to
the Mortgage Loans set forth on Schedule XVII, for which the Scheduled Payment
due each month is due on a Due Date (including any grace period) that may occur
after the end of the Collection Period in such month, sums received by the
Master Servicer with respect to such Scheduled Payment but after the end of such
Collection Period shall be applied by the Master Servicer to reimburse any
related P&I Advance made pursuant to Section 5.1(h), and the Master Servicer
shall remit to the Distribution Account on any Master Servicer Remittance Date
for a Collection Period any Principal Prepayments and Balloon Payments received
after the end of such Collection Period but no later than the second Business
Day immediately preceding such Master Servicer Remittance Date on the Mortgage
Loans set forth on Schedule XVII. The Master Servicer shall use its best efforts
to remit to the Distribution Account on any Master Servicer Remittance Date for
a Collection Period any Balloon Payments received after the date that is two
Business Days immediately preceding the related Master Servicer Remittance Date
and prior to the Distribution Date. In connection with the deposit of any
Balloon Payments to the Distribution Account in accordance with the immediately
preceding sentence, the Master Servicer shall promptly notify the Paying Agent
and the Paying Agent shall, if it has already reported anticipated distributions
to the Depository, use commercially reasonable efforts to cause the Depository
to make the revised distribution on a timely basis on such Distribution Date.
Neither the Master Servicer nor the Paying Agent shall be liable or held
responsible for any resulting delay or failure in the making of such
distribution to Certificateholders. For purposes of the definition of "Available
Distribution Amount" and "Principal Distribution Amount," the Scheduled Payments
and Principal Prepayments referred to in the preceding proviso shall be deemed
to have been collected in the prior Collection Period.
(c) On each Master Servicer Remittance Date in March of
every year commencing in March 2004, the Master Servicer shall withdraw all
amounts then in the Interest Reserve Account and deposit such amounts into the
Distribution Account.
(d) Notwithstanding the other provisions of this
Section 5.2 (but, for the avoidance of doubt, subject to a determination by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent,
otherwise in accordance with this Agreement, that any previously made Advance is
a Nonrecoverable Advance or that any amount reimbursable to any such party
pursuant to clause (a)(vi) of this Section 5.2 would, in its respective sole
discretion (exercised in the same manner in which it would exercise discretion
in accordance with the definition of "Nonrecoverable Advance"), not ultimately
be recoverable from the Certificate Account), the amounts payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
as reimbursements pursuant to clauses (a)(ii) and (a)(iii) above in respect of
any Nonrecoverable Advance above on any Master Servicer Remittance Date may, in
the sole discretion of the party which made such Advance, be limited (by
deferral) to the extent necessary to prevent any Class of Certificates rated
"BBB-" (or their equivalent) or higher (unless that Class of Certificates is the
most subordinated Class of Certificates then outstanding) from experiencing a
shortfall in the payment of the applicable Distributable Certificate Interest on
the related Distribution Date. Any reimbursements or amounts deferred pursuant
to this Section 5.2(d) shall be payable to such parties (with Advance Interest
thereon) on succeeding Master Servicer Remittance Dates (subject however to the
same limitation).
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SECTION 5.3 DISTRIBUTION ACCOUNT AND RESERVE ACCOUNT.
(a) The Paying Agent, on behalf of the Trustee shall
establish (with respect to clause (i), on or prior to the Closing Date, and with
respect to clause (ii), on or prior to the date the Paying Agent determines is
necessary) and maintain in its name, on behalf of the Trustee, (i) an account
(the "Distribution Account"), to be held in trust for the benefit of the Holders
until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx Fargo
Bank Minnesota, National Association, as Paying Agent on behalf of LaSalle Bank
National Association, as Trustee, in trust for the benefit of the Holders of
Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2003-TOP11, Distribution Account" and (ii) an account (the "Reserve
Account") to be held in trust for the benefit of the holders of interests in the
Trust until disbursed pursuant to the terms of this Agreement, titled: "Xxxxx
Fargo Bank Minnesota, National Association, as Paying Agent on behalf of LaSalle
Bank National Association, as Trustee, in trust for the benefit of the Holders
of Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series 2003-TOP11, Reserve Account." The Distribution Account and the Reserve
Account shall be Eligible Accounts. Funds in the Reserve Account shall not be
invested. The Distribution Account and Reserve Account shall be held separate
and apart from and shall not be commingled with any other monies including,
without limitation, other monies of the Paying Agent held under this Agreement.
Funds in the Distribution Account may be invested and, if
invested, shall be invested by, and at the risk of, the Paying Agent in Eligible
Investments selected by the Paying Agent which shall mature, unless payable on
demand, not later than such time on the Distribution Date which will allow the
Paying Agent to make withdrawals from the Distribution Account under Section
5.3(b), and any such Eligible Investment shall not be sold or disposed of prior
to its maturity unless payable on demand. All such Eligible Investments shall be
made in the name of "LaSalle Bank National Association, as Trustee for the
Holders of the Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2003-TOP11 and the holder of any related B Note as their
interests may appear." None of the Depositor, the Mortgagors, the Special
Servicer, the Master Servicer, the Primary Servicer or the Trustee shall be
liable for any loss incurred on such Eligible Investments.
An amount equal to all income and gain realized from any such
investment shall be paid to the Paying Agent as additional compensation and
shall be subject to its withdrawal at any time from time to time. The amount of
any losses incurred in respect of any such investments shall be for the account
of the Paying Agent which shall deposit the amount of such loss (to the extent
not offset by income from other investments) in the Distribution Account, as the
case may be, out of its own funds immediately as realized. If the Paying Agent
deposits in or transfers to the Distribution Account, as the case may be, any
amount not required to be deposited therein or transferred thereto, it may at
any time withdraw such amount or retransfer such amount from the Distribution
Account, as the case may be, any provision herein to the contrary
notwithstanding.
(b) The Paying Agent shall deposit into the Distribution
Account or the Reserve Account, as applicable, on the Business Day received all
moneys remitted by the Master Servicer pursuant to this Agreement, including P&I
Advances made by the Master Servicer, the Trustee and the Fiscal Agent and all
Excess Liquidation Proceeds. The Paying Agent shall deposit amounts constituting
collections of Excess Interest on the Mortgage Loans into the
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Excess Interest Sub-account. On any Master Servicer Remittance Date, the Master
Servicer shall have no duty to remit to the Distribution Account any amounts
other than amounts held in the Certificate Account and collected during the
related Collection Period as provided in clauses (v) and (xi) of Section 5.2(a)
and the P&I Advance Amount and, on the Master Servicer Remittance Date occurring
in March of any year, commencing in March 2004, amounts held in the Interest
Reserve Account. The Paying Agent shall make withdrawals from the Distribution
Account (including the Excess Interest Sub-account) and the Reserve Account only
for the following purposes:
(i) to withdraw amounts deposited in the
Distribution Account in error and pay such amounts to the Persons entitled
thereto;
(ii) to pay any amounts payable to the Master
Servicer, the Primary Servicer, the Special Servicer, the Fiscal Agent and the
Trustee (including the Trustee's Fee (other than that portion thereof, that
constitutes the Paying Agent's Fee)) and the Paying Agent (including the Paying
Agent Fee), or other expenses or other amounts permitted to be paid hereunder
and not previously paid to such Persons pursuant to Section 5.2;
(iii) to make distributions to the Certificateholders
pursuant to Section 6.5; and
(iv) to clear and terminate the Distribution Account
pursuant to Section 10.2.
SECTION 5.4 PAYING AGENT REPORTS.
(a) On or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent by the Master Servicer (no
later than 1:00 p.m., New York time on the Report Date), the Paying Agent shall
make available to any interested party via its internet website initially
located at "xxx.xxxxxxx.xxx/xxxx" (the "Paying Agent's Website"), (i) the
Monthly Certificateholders Report (substantially in the form of Exhibit M), (ii)
a report containing information regarding the Mortgage Loans as of the end of
the related Collection Period, which report shall contain substantially the
categories of information regarding the Mortgage Loans set forth in Appendix I
to the Final Prospectus Supplement and shall be presented in tabular format
substantially similar to the format utilized in such Appendix I which report may
be included as part of the Monthly Certificateholders Report, (iii) the Loan
Periodic Update File, Loan Setup File, Bond Level File and the Collateral
Summary File, (iv) the supplemental reports set forth in paragraph (b) of the
definition of Unrestricted Servicer Reports and (v) as a convenience for
interested parties (and not in furtherance of the distribution thereof under the
securities laws), the Final Prospectus Supplement and this Agreement.
In addition, on or prior to each Distribution Date, based on
information provided in monthly reports prepared by the Master Servicer and the
Special Servicer and delivered to the Paying Agent in accordance herewith, the
Paying Agent shall make available via the Paying Agent's Website, on a
restricted basis, the Restricted Servicer Reports (including the Property File
on or prior to each Distribution Date, commencing in September 2003). The Paying
Agent shall provide access to the Restricted Servicer Reports, upon request, to
each Certificateholder,
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each of the parties to this Agreement, each of the Rating Agencies, each of the
Underwriters, the Operating Adviser, the Placement Agents, any prospective
purchaser of the Certificates and any Certificate Owner upon receipt (which may
be in electronic form) from such person of an Investor Certificate in the form
of Exhibit Y, and any other person upon the direction of the Depositor, the
Placement Agents or any Underwriter. For assistance with the above-mentioned
Paying Agent services, Certificateholders or any party hereto may initially call
000-000-0000.
The Paying Agent makes no representations or warranties as to
the accuracy or completeness of any report, document or other information made
available on the Paying Agent's Website and assumes no responsibility therefor.
The Paying Agent shall be entitled to conclusively rely on any information
provided to it by the Master Servicer or the Special Servicer and shall have no
obligation to verify such information and the Paying Agent may disclaim
responsibility for any information distributed by the Paying Agent for which it
is not the original source. In connection with providing access to the Paying
Agent's Website, the Paying Agent, may require registration and the acceptance
of a disclaimer. None of the Master Servicer, the Special Servicer, any Primary
Servicer or the Paying Agent shall be liable for the dissemination of
information in accordance with this Agreement; provided that this sentence shall
not in any way limit the liability the Paying Agent may otherwise have in the
performance of its duties hereunder.
(b) Subject to Section 8.15, upon advance written request,
if required by federal regulation, of any Certificateholder (or holder of the
RSA Companion Loan or a B Note) that is a savings association, bank, or
insurance company, the Paying Agent shall provide (to the extent in its
possession) to each such Certificateholder (or such holder of the RSA Companion
Loan or B Note) such reports and access to non-privileged information and
documentation regarding the Mortgage Loans and the Certificates as such
Certificateholder (or such holder of the RSA Companion Loan or B Note) may
reasonably deem necessary to comply with applicable regulations of the Office of
Thrift Supervision or successor or other regulatory authorities with respect to
investment in the Certificates; provided that the Paying Agent shall be entitled
to be reimbursed by such Certificateholder (or such holder of the RSA Companion
Loan or B Note) for the Paying Agent's actual expenses incurred in providing
such reports and access. The holder of a B Note shall be entitled to receive
information and documentation only with respect to its related A/B Mortgage Loan
and the holder of the RSA Companion Loan shall be entitled to receive
information and documentation only with respect to the Loan Pair, pursuant
hereto.
(c) Upon written request, the Paying Agent shall send to
each Person who at any time during the calendar year was a Certificateholder of
record, customary information as the Paying Agent xxxxx xxx be necessary or
desirable for such Holders to prepare their federal income tax returns.
(d) Reserved
(e) The Paying Agent shall afford the Rating Agencies, the
Depositor, the Master Servicer, the Special Servicer, the Primary Servicer, the
Trustee, the Fiscal Agent, the Operating Adviser, any Certificateholder, the
Luxembourg Paying Agent, prospective Certificate Owner or any Person reasonably
designated by any Placement Agent, or any Underwriter upon reasonable notice and
during normal business hours, reasonable access to all relevant, non-attorney
privileged records and documentation regarding the applicable Mortgage Loans,
REO
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Property and all other relevant matters relating to this Agreement, and access
to Responsible Officers of the Paying Agent.
(f) Copies (or computer diskettes or other digital or
electronic formats of such information if reasonably available in lieu of paper
copies) of any and all of the foregoing items of this Section 5.4 shall be made
available by the Paying Agent upon request; provided, however, that the Paying
Agent shall be permitted to require payment by the requesting party (other than
the Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Fiscal Agent, the Operating Adviser, any Placement Agent or any Underwriter or
any Rating Agency) of a sum sufficient to cover the reasonable expenses actually
incurred by the Paying Agent of providing access or copies (including electronic
or digital copies) of any such information requested in accordance with the
preceding sentence.
(g) The Paying Agent shall make available at its Corporate
Trust Office (either in physical or electronic form), during normal business
hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any prospective Certificate Owner, the
Placement Agents, the Underwriters, each Rating Agency, the Special Servicer,
the Depositor, and solely as with respect to any A/B Mortgage Loan, the holder
of the B Note and solely as with respect to the Loan Pair, the holder of the RSA
Companion Loan, originals or copies of, among other things, any Phase I
Environmental Report or engineering report prepared or appraisals performed in
respect of each Mortgaged Property provided, however, that the Paying Agent
shall be permitted to require payment by the requesting party (other than either
Rating Agency or the Operating Adviser) of a sum sufficient to cover the
reasonable expenses actually incurred by the Paying Agent or the Trustee of
providing access or copies (including electronic or digital copies) of any such
information reasonably requested in accordance with the preceding sentence.
SECTION 5.5 PAYING AGENT TAX REPORTS. The Paying Agent
shall perform all reporting and other tax compliance duties that are the
responsibility of each REMIC Pool and the Class N Grantor Trust under the Code,
REMIC Provisions, or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Consistent with this Pooling and
Servicing Agreement, the Paying Agent shall provide or cause to be provided (i)
to the United States Treasury or other Persons (including, but not limited to,
the Transferor of a Class R-I, Class R-II or Class R-III Certificate, to a
Disqualified Organization or to an agent that has acquired a Class R-I, Class
R-II or Class R-III Certificate on behalf of a Disqualified Organization) such
information as is necessary for the application of any tax relating to the
transfer of a Class R-I, Class R-II or Class R-III Certificate to any
Disqualified Organization and (ii) to the Certificateholders such information or
reports as are required by the Code or REMIC Provisions; in the case of (i),
subject to reimbursement of expenses relating thereto in accordance with Section
7.12. The Master Servicer shall on a timely basis provide the Paying Agent with
such information concerning the Mortgage Loans as is necessary for the
preparation of the tax or information returns or receipts of each REMIC Pool as
the Paying Agent may reasonably request from time to time. The Special Servicer
is required to provide to the Master Servicer all information in its possession
with respect to the Specially Serviced Mortgage Loans in order for the Master
Servicer to comply with its obligations under this Section 5.5. The Paying Agent
shall be entitled to conclusively rely on any such information provided to it by
the Master Servicer or the Special Servicer and shall have no obligation to
verify any such information.
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ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 DISTRIBUTIONS GENERALLY. Subject to Section
10.2(a), respecting the final distribution on the Certificates, on each
Distribution Date, the Paying Agent shall (1) first, withdraw from the
Distribution Account and pay to the Fiscal Agent and Trustee any unpaid fees,
expenses and other amounts then required to be paid pursuant to this Agreement,
and then, to the Paying Agent, any unpaid fees, expenses and other amounts then
required to be paid pursuant to this Agreement, and then at the written
direction of the Master Servicer, withdraw from the Distribution Account and pay
to the Master Servicer, the Primary Servicer and Special Servicer any unpaid
servicing compensation or other amounts currently required to be paid pursuant
to this Agreement (to the extent not previously retained or withdrawn by the
Master Servicer from the Certificate Account), and (2) second, make
distributions in the manner and amounts set forth below.
Each distribution to Holders of Certificates shall be made by
check mailed to such Holder's address as it appears on the Certificate Register
of the Certificate Registrar or, upon written request to the Paying Agent on or
prior to the related Record Date (or upon standing instructions given to the
Paying Agent on the Closing Date prior to any Record Date, which instructions
may be revoked at any time thereafter upon written notice to the Paying Agent
five days prior to the related Record Date) made by a Certificateholder by wire
transfer in immediately available funds to an account specified in the request
of such Certificateholder; provided, that (i) remittances to the Paying Agent
shall be made by wire transfer of immediately available funds to the
Distribution Account and the Reserve Account; and (ii) the final distribution in
respect of any Certificate shall be made only upon presentation and surrender of
such Certificate at such location specified by the Paying Agent in a notice
delivered to Certificateholders pursuant to Section 10.2(a). If any payment
required to be made on the Certificates is to be made on a day that is not a
Business Day, then such payment will be made on the next succeeding Business Day
without compensation for such delay. All distributions or allocations made with
respect to Holders of Certificates of a Class on each Distribution Date shall be
made or allocated among the outstanding Interests in such Class in proportion to
their respective initial Certificate Balances or Percentage Interests for the
Class X Certificates.
SECTION 6.2 REMIC I.
(a) On each Distribution Date, the Paying Agent shall be
deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC
I Regular Interests, for the following purposes and in the following order of
priority:
(i) from the portion of the Available Distribution
Amount attributable to interest collected or deemed collected on or with respect
to each Mortgage Loan or REO Property, Distributable Certificate Interest to
each Corresponding REMIC I Regular Interest;
(ii) from the portion of the Available Distribution
Amount attributable to principal collected or deemed collected on or with
respect to each Mortgage Loan or REO Property, principal to the Corresponding
REMIC I Regular Interest, until the Certificate Balance thereof is reduced to
zero;
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(iii) any remaining funds, to reimburse any Realized
Losses previously allocated to the REMIC I Regular Interests, plus interest on
such Realized Losses previously allocated thereto, at the applicable
Pass-Through Rates; and
(iv) thereafter, to the Class R-I Certificateholders
at such time as the Certificate Balance of all Classes of REMIC I Regular
Interests have been reduced to zero, and Realized Losses previously allocated
thereto have been reimbursed to the Holders of the REMIC I Regular Interests,
any amounts remaining.
SECTION 6.3 REMIC II.
(a) On each Distribution Date, the Paying Agent shall be
deemed to distribute to itself on behalf of the Trustee, as holder of the REMIC
II Regular Interests, for the following purposes and in the following order of
priority:
(i) an amount equal to Distributable Certificate
Interest for the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates, Class X-1 Certificates and Class X-2
Certificates to REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B,
REMIC II Regular Interest A-1C, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-3A,
REMIC II Regular Interest A-3B, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest B-1,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest C-3,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC
II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest
J-1, REMIC II Regular Interest J-2, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N,
divided among such REMIC II Regular Interests in proportion to (A) in the case
of the REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B, REMIC II
Regular Interest A-1C, REMIC II Regular Interest A-2A, REMIC II Regular Interest
A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-3A, REMIC II
Regular Interest A-3B, REMIC II Regular Interest A-4A, REMIC II Regular Interest
A-4B and REMIC II Regular Interest A-4C, the Accrued Certificate Interest for
such Distribution Date and (B) in the case of REMIC II Regular Interest B-1,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest C-3,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC
II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest
J-1, REMIC II Regular Interest J-2, REMIC II Regular Interest K, REMIC II
Regular Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N,
the product of (a) the Certificate Balance of such Interest and (b) one-twelfth
of the sum of the related Class X-1 Strip Rate and the related Class X-2 Strip
Rate (if any);
(ii) to REMIC II Regular Interest A-1A, REMIC II
Regular Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest
A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II
Regular Interest A-3A, REMIC II Regular Interest A-3B, REMIC II Regular Interest
A-4A, REMIC II Regular Interest A-4B and REMIC II Regular Interest A-4C, in
reduction of the Certificate Balances thereof, in an amount
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up to the Principal Distribution Amount for such Distribution Date: (A) first,
to the REMIC II Regular Interest A-1A until the Certificate Balance of REMIC II
Regular Interest A-1A is reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest A-1A, to the REMIC II
Regular Interest A-1B, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest A-1A), until the Certificate Balance of the REMIC II Regular
Interest A-1B has been reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest A-1B, to the REMIC II
Regular Interest A-1C, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest A-1A and A-1B), until the Certificate Balance of the REMIC II
Regular Interest A-1C has been reduced to zero (B) second, to the REMIC II
Regular Interest A-2A, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest A-1A, A-1B and A-1C), until the Certificate Balance of the
REMIC II Regular Interest A-2A has been reduced to zero, and upon payment in
full of the Certificate Balance of the REMIC II Regular Interest A-2A, to the
REMIC II Regular Interest A-2B, the Principal Distribution Amount for such
Distribution Date (reduced by any portion thereof deemed to be distributed to
the REMIC II Regular Xxxxxxxx X-0X, X-0X, X-0X and A-2A), until the Certificate
Balance of the REMIC II Regular Interest A-2B has been reduced to zero, and upon
payment in full of the Certificate Balance of the REMIC II Regular Interest
A-2B, to the REMIC II Regular Interest A-2C, the Principal Distribution Amount
for such Distribution Date (reduced by any portion thereof deemed to be
distributed to the REMIC II Regular Xxxxxxxx X-0X, X-0X, X-0X, X-0X xxx X-0X),
until the Certificate Balance of the REMIC II Regular Interest A-2C has been
reduced to zero; (C) third, to the REMIC II Regular Interest A-3A, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Xxxxxxxx X-0X, X-0X, X-0X,
X-0X, X-0X and A-2C), until the Certificate Balance of the REMIC II Regular
Interest A-3A has been reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest A-3A, to the REMIC II
Regular Interest A-3B, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Xxxxxxxx X-0X, X-0X, X-0X, X-0X, X-0X, X-0X and A-3A), until the
Certificate Balance of the REMIC II Regular Interest A-3B has been reduced to
zero; and (D) fourth, to the REMIC II Regular Interest A-4A, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest X-0X, X-0X, X-0X,
X-0X, X-0X, X-0X, X-0X xxx X-0X), until the Certificate Balance of the REMIC II
Regular Interest A-4A has been reduced to zero, and upon payment in full of the
Certificate Balance of the REMIC II Regular Interest A-4A, to the REMIC II
Regular Interest A-4B, the Principal Distribution Amount for such Distribution
Date (reduced by any portion thereof deemed to be distributed to the REMIC II
Regular Interest X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X and A-4A), until
the Certificate Balance of the REMIC II Regular Interest A-4B has been reduced
to zero, and upon payment in full of the Certificate Balance of the REMIC II
Regular Interest A-4B, to the REMIC II Regular Interest A-4C, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed to the REMIC II Regular Interest X-0X, X-0X, X-0X,
X-0X, X-0X, X-0X, X-0X, X-0X, A-4A and A-4B), until the Certificate Balance of
the REMIC II Regular Interest A-4C has been reduced to zero;
(iii) to REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest A-2A,
REMIC II Regular
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Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-3A,
REMIC II Regular Interest A-3B, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest B-1,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest C-3,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC
II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest
J-1, REMIC Regular Interest J-2, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N, pro
rata on the basis of their respective entitlements to reimbursement described in
this clause (iii), to reimburse any Realized Interest Losses previously
allocated to REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B,
REMIC II Regular Interest A-1C, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-3A,
REMIC II Regular Interest A-3B, REMIC II Regular Interest A-4A, REMIC II Regular
Interest A-4B, REMIC II Regular Interest A-4C, REMIC II Regular Interest B-1,
REMIC II Regular Interest B-2, REMIC II Regular Interest B-3, REMIC II Regular
Interest C-1, REMIC II Regular Interest C-2, REMIC II Regular Interest C-3,
REMIC II Regular Interest D-1, REMIC II Regular Interest D-2, REMIC II Regular
Interest E, REMIC II Regular Interest F-1, REMIC II Regular Interest F-2, REMIC
II Regular Interest G, REMIC II Regular Interest H, REMIC II Regular Interest
J-1, REMIC Regular Interest J-2, REMIC II Regular Interest K, REMIC II Regular
Interest L, REMIC II Regular Interest M and REMIC II Regular Interest N, in the
case of all such Interests other than the REMIC II Regular Interest A-1A, REMIC
II Regular Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C,
REMIC II Regular Interest A-3A, REMIC II Regular Interest A-3B, REMIC II Regular
Interest A-4A, REMIC II Regular Interest A-4B and REMIC II Regular Interest
A-4C, as a result of the allocation of Realized Losses to the Class X
Certificates and in the case of all such Interests, inclusive of one month's
interest at the applicable Pass-Through Rate on such Realized Interest Losses;
(iv) to the REMIC II Regular Interest B-1, REMIC II Regular
Interest B-2 and REMIC II Regular Interest B-3, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
divided among such REMIC II Regular Interests in proportion to the Accrued
Certificate Interest for such Distribution Date, to the extent not distributed
pursuant to clause (i) above;
(v) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest A-4C, to the REMIC II Regular Interest B-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest B-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B-1, to the REMIC II Regular Interest B-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest B-2 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B-2, to the REMIC II Regular Interest B-3, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest B-3 has been
reduced to zero;
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(vi) to the REMIC II Regular Interest B-1, REMIC II Regular
Interest B-2 and REMIC II Regular Interest B-3, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses, pro rata on the basis of
their respective entitlements to reimbursement;
(vii) to the REMIC II Regular Interest C-1, REMIC II Regular
Interest C-2 and REMIC II Regular Interest C-3, the remainder of the
Distributable Certificate Interest for such Interest for such Distribution Date,
divided among such REMIC II Regular Interests in proportion to the Accrued
Certificate Interest for such Distribution Date, to the extent not distributed
pursuant to clause (i) above;
(viii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest B-3, to the REMIC II Regular Interest C-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest C-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C-1, to the REMIC II Regular Interest C-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest C-2 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C-2, to the REMIC II Regular Interest C-3, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest C-3 has been
reduced to zero;
(ix) to the REMIC II Regular Interest C-1, REMIC II Regular
Interest C-2 and REMIC II Regular Interest C-3, to reimburse any unreimbursed
Realized Losses previously allocated thereto, plus one month's interest at the
applicable Pass-Through Rate on such Realized Losses, pro rata on the basis of
their respective entitlements to reimbursement;
(x) to the REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2, the remainder of the Distributable Certificate Interest
for such Interests for such Distribution Date, divided among such REMIC II
Regular Interests in proportion to the Accrued Certificate Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xi) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest C-3, to the REMIC II Regular Interest D-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest D-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest D-1, to the REMIC II Regular Interest D-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest D-2 has been
reduced to zero;
(xii) to the REMIC II Regular Interest D-1 and REMIC II
Regular Interest D-2, to reimburse any unreimbursed Realized Losses previously
allocated thereto, plus
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one month's interest at the applicable Pass-Through Rate on such Realized
Losses, pro rata on the basis of their respective entitlements to reimbursement;
(xiii) to the REMIC II Regular Interest E, the remainder of
the Distributable Certificate Interest for such Interests for such Distribution
Date, to the extent not distributed pursuant to clause (i) above;
(xiv) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest D-2, to the REMIC II Regular Interest E, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest E has been reduced to zero;
(xv) to the REMIC II Regular Interest E, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xvi) to the REMIC II Regular Interest F-1 and REMIC II
Regular Interest F-2, the remainder of the Distributable Certificate Interest
for such Interests for such Distribution Date, divided among such REMIC II
Regular Interests in proportion to the Accrued Certificate Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xvii) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest E, to the REMIC II Regular Interest F-1, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest F-1 has been reduced to
zero, and upon payment in full of the Certificate Balance of the REMIC II
Regular Interest F-1, to the REMIC II Regular Interest F-2, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest F-2 has been reduced to
zero;
(xviii) to the REMIC II Regular Interest F-1 and REMIC II
Regular Interest F-2, to reimburse any unreimbursed Realized Losses previously
allocated thereto, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses, pro rata on the basis of their respective entitlements
to reimbursement;
(xix) to the REMIC II Regular Interest G, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xx) upon payment in full of the Certificate Balance of the
REMIC II Regular Interest F-2, to the REMIC II Regular Interest G, the Principal
Distribution Amount for such Distribution Date (reduced by any portion thereof
deemed to be distributed pursuant to the preceding provisions hereof), until the
Certificate Balance of the REMIC II Regular Interest G has been reduced to zero;
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(xxi) to the REMIC II Regular Interest G, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxii) to the REMIC II Regular Interest H, the remainder of
the Distributable Certificate Interest for such Interests for such Distribution
Date, divided among such REMIC II Regular Interests in proportion to the Accrued
Certificate Interest for such Distribution Date, to the extent not distributed
pursuant to clause (i) above;
(xxiii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest G, to the REMIC II Regular Interest H, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest H has been
reduced to zero;
(xxiv) to the REMIC II Regular Interest H, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxv) to the REMIC II Regular Interest J-1 and REMIC II
Regular Interest J-2, the remainder of the Distributable Certificate Interest
for such Interests for such Distribution Date, divided among such REMIC II
Regular Interests in proportion to the Accrued Certificate Interest for such
Distribution Date, to the extent not distributed pursuant to clause (i) above;
(xxvi) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest H, to the REMIC II Regular Interest J-1, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest J-1 has been
reduced to zero, and upon payment in full of the Certificate Balance of the
REMIC II Regular Interest J-1, to the REMIC II Regular Interest J-2, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest J-2 has been
reduced to zero;
(xxvii) to the REMIC II Regular Interest J-1 and REMIC II
Regular Interest J-2, to reimburse any unreimbursed Realized Losses previously
allocated thereto, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses, pro rata on the basis of their respective entitlements
to reimbursement;
(xxviii) to the REMIC II Regular Interest K, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxix) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest J-2, to the REMIC II Regular Interest K, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest K has been
reduced to zero;
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(xxx) to the REMIC II Regular Interest K, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxi) to the REMIC II Regular Interest L, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest K, to the REMIC II Regular Interest L, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest L has been
reduced to zero;
(xxxiii) to the REMIC II Regular Interest L, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxiv) to the REMIC II Regular Interest M, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxv) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest L, to the REMIC II Regular Interest M, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest M has been
reduced to zero;
(xxxvi) to the REMIC II Regular Interest M, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xxxvii) to the REMIC II Regular Interest N, the remainder of
the Distributable Certificate Interest for such Interest for such Distribution
Date to the extent not distributed pursuant to clause (i) above;
(xxxviii) upon payment in full of the Certificate Balance of
the REMIC II Regular Interest M, to the REMIC II Regular Interest N, the
Principal Distribution Amount for such Distribution Date (reduced by any portion
thereof deemed to be distributed pursuant to the preceding provisions hereof),
until the Certificate Balance of the REMIC II Regular Interest N has been
reduced to zero;
(xxxix) to the REMIC II Regular Interest N, to reimburse any
unreimbursed Realized Losses previously allocated thereto, plus one month's
interest at the applicable Pass-Through Rate on such Realized Losses;
(xl) thereafter, to the Class R-II Certificateholders at
such time as the Certificate Balances of all Classes of REMIC II Regular
Interests have been reduced to zero,
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and Realized Losses previously allocated thereto have been reimbursed to the
Holders of the REMIC II Regular Interests, any amounts remaining.
SECTION 6.4 RESERVED.
SECTION 6.5 REMIC III.
(a) On each Distribution Date, the Paying Agent shall
withdraw from the Distribution Account an amount equal to the Available
Distribution Amount and shall distribute such amount (other than the amount
attributable to any Excess Interest, which shall be distributed in accordance
with Section 6.5(c)) and Excess Liquidation Proceeds in the following amounts
and order of priority:
(i) to the Holders of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates, Class
X-1 Certificates and Class X-2 Certificates, Distributable Certificate Interest
for such Distribution Date, pro rata in proportion to the Distributable
Certificate Interest payable to each such Class;
(ii) to the Holders of the Class A-1, Class A-2,
Class A-3 and Class A-4 Certificates, in reduction of the Certificate Balances
thereof, in an amount up to the Principal Distribution Amount for such
Distribution Date: first, to the Holders of the Class A-1 Certificates, the
Principal Distribution Amount for such Distribution Date until the Certificate
Balance thereof is reduced to zero; second, upon payment in full of the
aggregate Certificate Balance of the Class A-1 Certificates, to the holders of
the Class A-2 Certificates, the Principal Distribution Amount for such
Distribution Date (reduced by any prior distributions thereof hereunder) until
the aggregate Certificate Balance of the Class A-2 Certificates has been reduced
to zero; third, upon payment in full of the aggregate Certificate Balance of the
Class A-2 Certificates, to the holders of the Class A-3 Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder) until the aggregate Certificate Balance of the
Class A-3 Certificates has been reduced to zero and fourth, upon payment in full
of the aggregate Certificate Balance of the Class A-3 Certificates, to the
holders of the Class A-4 Certificates, the Principal Distribution Amount for
such Distribution Date (reduced by any prior distributions thereof hereunder)
until the aggregate Certificate Balance of the Class A-4 Certificates has been
reduced to zero;
(iii) to the Holders of the Class A Certificates,
Class X-1 Certificates and Class X-2 Certificates, pro rata (treating principal
and interest losses separately), to reimburse any Realized Losses previously
allocated thereto and not previously fully reimbursed, plus one month's interest
at the applicable Pass-Through Rate on such Realized Losses;
(iv) to the Holders of the Class B Certificates,
Distributable Certificate Interest for such Distribution Date;
(v) upon payment in full of the Certificate Balance
of the Class A-4 Certificates, to the Holders of the Class B Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class B
Certificates has been reduced to zero;
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(vi) to the Holders of the Class B Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(vii) to the Holders of the Class C Certificates,
Distributable Certificate Interest for such Distribution Date;
(viii) upon payment in full of the Certificate Balance
of the Class B Certificates, to the Holders of the Class C Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class C
Certificates has been reduced to zero;
(ix) to the Holders of the Class C Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(x) to the Holders of the Class D Certificates,
Distributable Certificate Interest for such Distribution Date;
(xi) upon payment in full of the Certificate Balance
of the Class C Certificates, to the Holders of the Class D Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class D
Certificates has been reduced to zero;
(xii) to the Holders of the Class D Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xiii) to the Holders of the Class E Certificates,
Distributable Certificate Interest for such Distribution Date;
(xiv) upon payment in full of the Certificate Balance
of the Class D Certificates, to the Holders of the Class E Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class E
Certificates has been reduced to zero;
(xv) to the Holders of the Class E Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xvi) to the Holders of the Class F Certificates,
Distributable Certificate Interest for such Distribution Date;
(xvii) upon payment in full of the Certificate Balance
of the Class E Certificates, to the Holders of the Class F Certificates, the
Principal Distribution Amount for such Distribution Date (reduced by any prior
distributions thereof hereunder), until the Certificate Balance of the Class F
Certificates has been reduced to zero;
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(xviii) to the Holders of the Class F Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xix) to the Holders of the Class G Certificates,
Distributable Certificate Interest for such Distribution Date;
(xx) upon payment in full of the Certificate
Balance of the Class F Certificates, to the Holders of the Class G Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class G Certificates has been reduced to zero;
(xxi) to the Holders of the Class G Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxii) to the Holders of the Class H Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxiii) upon payment in full of the Certificate
Balance of the Class G Certificates, to the Holders of the Class H Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class H Certificates has been reduced to zero;
(xxiv) to the Holders of the Class H Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxv) to the Holders of the Class J Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxvi) upon payment in full of the Certificate
Balance of the Class H Certificates, to the Holders of the Class J Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class J Certificates has been reduced to zero;
(xxvii) to the Holders of the Class J Certificates, to
reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxviii) to the Holders of the Class K Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxix) upon payment in full of the Certificate
Balance of the Class J Certificates, to the Holders of the Class K Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class K Certificates has been reduced to zero;
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(xxx) to the Holders of the Class K Certificates,
to reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxi) to the Holders of the Class L Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxii) upon payment in full of the Certificate
Balance of the Class K Certificates, to the Holders of the Class L Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class L Certificates has been reduced to zero;
(xxxiii) to the Holders of the Class L Certificates,
to reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxiv) to the Holders of the Class M Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxv) upon payment in full of the Certificate
Balance of the Class L Certificates, to the Holders of the Class M Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class M Certificates has been reduced to zero;
(xxxvi) to the Holders of the Class M Certificates,
to reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses;
(xxxvii) to the Holders of the Class N Certificates,
Distributable Certificate Interest for such Distribution Date;
(xxxviii) upon payment in full of the Certificate
Balance of the Class M Certificates, to the Holders of the Class N Certificates,
the Principal Distribution Amount for such Distribution Date (reduced by any
prior distributions thereof hereunder), until the Certificate Balance of the
Class N Certificates has been reduced to zero;
(xxxix) to the Holders of the Class N Certificates,
to reimburse any Realized Losses previously allocated thereto and not previously
fully reimbursed, plus one month's interest at the applicable Pass-Through Rate
on such Realized Losses; and
(xl) to the Holders of the Class R-III
Certificates at such time as the Certificate Balances of all Classes of REMIC
Regular Certificates have been reduced to zero, and Realized Losses previously
allocated to each Holder have been reimbursed to the Holders of the REMIC
Regular Certificates, any amounts remaining on deposit in the Distribution
Account.
Notwithstanding the foregoing, on each Distribution Date
occurring on or after the earliest date, if any, upon which the Certificate
Balances of all the Classes of Subordinate Certificates have been reduced to
zero or the aggregate Appraisal Reduction in effect is greater than or equal to
the Certificate Balances of all the Classes of Subordinate Certificates, the
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Principal Distribution Amount will be distributed, first, to the Holders of the
Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, pro rata, based on
their respective Certificate Balances, in reduction of their respective
Certificate Balances, until the Certificate Balance of each such Class is
reduced to zero; and, second, to the Holders of the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates, pro rata, based on the respective amounts of
unreimbursed Realized Losses previously allocated to each such Class, plus one
month's interest on such Realized Losses at the applicable Pass-Through Rate. A
similar rule shall apply to the distribution of the Principal Distribution
Amount to REMIC II Regular Interests X-0X, X-0X, X-0X, X-0X, X-0X, X-0X, X-0X,
X-0X, X-0X, X-0X and A-4C, in lieu of the distributions described in Section
6.3(a)(ii).
(b) On each Distribution Date, the Paying Agent shall
withdraw amounts in the Reserve Account and shall pay the Certificateholders on
such Distribution Date such amounts in the following priority:
(i) first, to reimburse the Holders of the Principal
Balance Certificates (in order of alphabetical Class designation) for any, and
to the extent of, Realized Losses previously allocated to them; and
(ii) second, upon the reduction of the Aggregate
Certificate Balance of the Principal Balance Certificates to zero, to pay any
amounts remaining on deposit in such account to the Special Servicer as
additional Special Servicer Compensation.
This Section 6.5(b) shall apply mutatis mutandis to
reimbursement of Realized Losses previously allocated to the REMIC II Regular
Interests.
(c) On each Distribution Date, the Paying Agent shall
withdraw from the Excess Interest Sub-account any Excess Interest on deposit
therein, and the Paying Agent shall pay such Excess Interest on such
Distribution Date to the Class N Certificates (even if the Certificate Balance
of the Class N Certificates has been reduced to zero for any reason).
SECTION 6.6 ALLOCATION OF REALIZED LOSSES, EXPENSE LOSSES
AND SHORTFALLS DUE TO NONRECOVERABILITY.
(a) REMIC I. On each Distribution Date, except as provided
in subsection (b) below,
(i) Realized Principal Losses on each Mortgage Loan
realized during the related Collection Period shall reduce the Certificate
Balance of the Corresponding REMIC I Regular Interest;
(ii) Realized Interest Losses on each Mortgage Loan
shall be allocated to reduce first, Distributable Certificate Interest for such
Distribution Date, and then Unpaid Interest in each case owing on the
Corresponding REMIC I Regular Interest; and to the extent that such Realized
Interest Loss exceeds such amount, shall be treated as an Expense Loss;
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(iii) Expense Losses (not otherwise applied above)
realized during the related Collection Period shall be allocated among the REMIC
I Regular Interests in proportion to their Certificate Balances after making all
other allocations for such Distribution Date.
(b) In the event that the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, determines that an Advance previously
made by it is a Nonrecoverable Advance and the Master Servicer withdraws the
amount of such Advance from the Certificate Account pursuant to Section 5.2(a)
hereof (which amount shall be treated as an Available Advance Reimbursement
Amount pursuant to Section 4.6), it shall determine the portion of the amount so
withdrawn that is attributable to (w) interest on the related Mortgage Loan; (x)
principal on the related Mortgage Loan; (y) Servicing Advances; and (z) Advance
Interest. The portion of the amount so withdrawn from the Certificate Account
that is allocable to:
(i) amounts previously advanced as interest on the
related Mortgage Loan shall reduce the Available Distribution Amount for REMIC I
and shall be allocated to reduce the amount of interest paid on each REMIC I
Regular Interest on such Distribution Date in proportion to Distributable
Certificate Interest otherwise payable thereon, and shall result in Unpaid
Interest on each such REMIC I Regular Interest;
(ii) amounts previously advanced as principal on the
related Mortgage Loan shall reduce the Available Distribution Amount for REMIC I
and shall be allocated to reduce the principal paid on each REMIC I Regular
Interest on which principal would otherwise be paid on such Distribution Date,
in proportion to such principal payments; and
(iii) amounts previously advanced as Servicing
Advances, as well as Advance Interest owing to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent with respect to Advances shall be
treated as Expense Losses and allocated in accordance with Section 6.6(a)(iii)
above.
(c) At such time as a Final Recovery Determination is made
with respect to any Mortgage Loan with respect to which the Master Servicer
previously had withdrawn amounts from the Certificate Account following a
determination that Advances previously made were Nonrecoverable Advances, or at
such other time as a Realized Loss shall occur with respect to any such Mortgage
Loan, the Master Servicer shall compute the Realized Loss with respect to such
Mortgage Loan and the Paying Agent shall allocate such Realized Loss as follows:
(i) to the extent that any Realized Principal Loss
does not exceed the Certificate Balance on the Corresponding REMIC I Regular
Interest, such Realized Principal Loss shall be allocated to such REMIC I
Regular Interest; and to the extent that any Realized Principal Loss exceeds the
Certificate Balance of the Corresponding REMIC I Regular Interest, such Realized
Principal Loss shall be allocated to the other Corresponding REMIC I Regular
Interests with respect to which distributions of principal were reduced pursuant
to Section 6.6(b)(ii) above, in proportion to the amount of such reductions;
(ii) any Realized Interest Loss shall be allocated to
the Corresponding REMIC I Interest to the extent of Unpaid Interest thereon and
any remaining
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portion of the Realized Interest Loss shall be allocated as a Realized Interest
Loss on each REMIC I Regular Interest with respect to which Unpaid Interest was
created pursuant to Section 6.6(b)(i) above in proportion to the amount of
Unpaid Interest resulting from the reduction in distributions of interest on
such REMIC I Regular Interest pursuant to Section 6.6(b)(i) above;
(iii) the portion of the amount recovered on the
Mortgage Loan with respect to which amounts were withdrawn from the Certificate
Account that are treated as Recoveries of principal on the Mortgage Loan shall
be applied first, to make payments of principal on the Corresponding REMIC I
Regular Interest until the Realized Principal Losses previously allocated
thereto are reduced to zero and thereafter to make payments of principal to the
Corresponding REMIC I Regular Interests with respect to which principal
distributions were reduced pursuant to Section 6.6(b)(i) above, in proportion to
the amount of such reductions;
(iv) the portion of the amount recovered on the
Mortgage Loan with respect to which amounts were withdrawn from the Certificate
Account that are treated as Recoveries of interest on the Mortgage Loan shall be
applied first, to make payments of Unpaid Interest on the Corresponding REMIC I
Regular Interest and thereafter to make payments of interest on each REMIC I
Interest with respect to which Unpaid Interest was created pursuant to Section
6.6(b)(ii) above in proportion to the amount of Unpaid Interest resulting from
the reduction in distributions of interest on such REMIC I Regular Interest
pursuant to Section 6.6(b)(ii) above; and
(v) the portion of the amount recovered on the
Mortgage Loan with respect to which amounts were withdrawn from the Certificate
Account that is treated as a recovery of expenses on the Mortgage Loan shall be
applied in reimbursement of Expense Losses on each REMIC I Regular Interest with
respect to which an Expense Loss was created pursuant to Section 6.6(b)(iii)
above in proportion to the amount of the Expense Loss allocated thereto pursuant
to Section 6.6(b)(iii) above.
(d) REMIC II. On each Distribution Date, all Realized
Losses on the REMIC I Interests for such Distribution Date (or for prior
Distribution Dates, to the extent not previously allocated) shall be allocated
to the Corresponding REMIC II Regular Interests in the amounts and in the manner
as will be allocated to the REMIC Regular Certificates relating thereto pursuant
to Section 6.6(f); provided, however, that Realized Losses allocated to REMIC II
Regular Interests that have Components shall be allocated among the Components
of such REMIC II Regular Interests sequentially in alphabetical and numerical
order. Realized Losses allocated to the Class X Certificates shall reduce the
amount of interest payable on the REMIC II Regular Interest A-1A, REMIC II
Regular Interest A-1B, REMIC II Regular Interest A-1C, REMIC II Regular Interest
A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II
Regular Interest A-3A, REMIC II Regular Interest A-3B, REMIC II Regular Interest
A-4A, REMIC II Regular Interest A-4B, REMIC II Regular Interest A-4C, REMIC II
Regular Interest B-1, REMIC II Regular Interest B-2, REMIC II Regular Interest
B-3, REMIC II Regular Interest C-1, REMIC II Regular Interest C-2, REMIC II
Regular Interest C-3, REMIC II Regular Interest D-1, REMIC II Regular Interest
D-2, REMIC II Regular Interest E, REMIC II Regular Interest F-1, REMIC II
Regular Interest F-2, REMIC II Regular Interest G, REMIC II Regular Interest H,
REMIC II Regular Interest J-1, REMIC Regular Interest J-2, REMIC II Regular
Interest K, REMIC II Regular Interest L, REMIC II Regular Interest M and REMIC
II Regular Interest N, which reduction shall be allocated pro rata based on the
product of the
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Certificate Balance of such REMIC II Regular Interest and the sum of the Class
X-1 Strip Rate and the Class X-2 Strip Rate (if any) applicable to the Class of
Certificates relating to such REMIC II Regular Interest.
(e) Reserved
(f) REMIC III. On each Distribution Date, all Realized
Losses on the REMIC II Regular Interests for such Distribution Date (or for
prior Distribution Dates, to the extent not previously allocated) shall be
allocated to the REMIC Regular Certificates in Reverse Sequential Order, in each
case reducing (A) the Certificate Balance of such Class until such Certificate
Balance is reduced to zero (in the case of the Principal Balance Certificates);
(B) Unpaid Interest owing to such Class to the extent thereof and (C)
Distributable Certificate Interest owing to such Class, provided, that such
reductions shall be allocated among the Class A-1 Certificates, Class A-2
Certificates, Class A-3 Certificates, Class A-4 Certificates, Class X-1
Certificates and Class X-2 Certificates, pro rata, based upon their outstanding
Certificate Balances or accrued interest, as the case may be, and provided
further, that Realized Losses shall not reduce the Aggregate Certificate Balance
of the REMIC III Certificates below the sum of the Aggregate Certificate
Balances of the REMIC II Regular Interests.
SECTION 6.7 NET AGGREGATE PREPAYMENT INTEREST SHORTFALLS. On
each Distribution Date, any Net Aggregate Prepayment Interest Shortfalls in
REMIC I, shall be allocated among the REMIC I Regular Interests, pro rata in
proportion to the Accrued Certificate Interest for each such REMIC I Regular
Interest for such Distribution Date and shall reduce Distributable Certificate
Interest for each such Interest. On each Distribution Date, any Net Aggregate
Prepayment Interest Shortfalls in REMIC II shall be allocated among the REMIC II
Regular Interests, pro rata in proportion to the Accrued Certificate Interest
for each such REMIC II Regular Interest for such Distribution Date and shall
reduce Distributable Certificate Interest for each such Interest. On each
Distribution Date, the amount of any Net Aggregate Prepayment Interest
Shortfalls on the REMIC III Regular Interests shall be allocated to each Class
of Certificates, pro rata, in proportion to the amount of Accrued Certificate
Interest payable to such Class of Certificates on such Distribution Date, in
each case reducing interest otherwise payable thereon. The amount of Net
Aggregate Prepayment Interest Shortfalls allocated to a Class of Certificates
pursuant to the preceding sentence shall reduce the Distributable Certificate
Interest for such Class for such Distribution Date. No Prepayment Interest
Shortfall with respect to a Companion Loan or a B Note shall be allocated to any
Class of Certificates.
SECTION 6.8 ADJUSTMENT OF SERVICING FEES. The Master
Servicing Fee payable to the Master Servicer shall be adjusted as provided in
Section 8.10(c) herein. Any amount retained by REMIC I as a result of a
reduction of the Master Servicing Fee shall be treated as interest collected
with respect to the prepaid Mortgage Loans with respect to which the Master
Servicing Fee adjustment occurs.
SECTION 6.9 APPRAISAL REDUCTIONS. Not later than the date on
which an Appraisal Event occurs, the Special Servicer shall have obtained (A) an
Appraisal of the Mortgaged Property securing the related Mortgage Loan or Loan
Pair, if the Principal Balance of such Mortgage Loan or Loan Pair exceeds
$2,000,000 or (B) at the option of the Special Servicer, if such Principal
Balance is less than or equal to $2,000,000, either an internal
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valuation prepared by the Special Servicer in accordance with MAI standards or
an Appraisal which in all cases shall be completed as of the date that such
Mortgage Loan or Loan Pair becomes a Required Appraisal Loan; provided that if
the Special Servicer had completed or obtained an Appraisal or internal
valuation within the immediately prior 12 months, the Special Servicer may rely
on such Appraisal or internal valuation and shall have no duty to prepare a new
Appraisal or internal valuation, unless such reliance would not be in accordance
with the Servicing Standard; provided, further, that if the Special Servicer is
required to obtain an Appraisal of a Mortgaged Property after receipt of the
notice described in clause (ii) of the definition of Appraisal Event, such
Appraisal will be obtained no later than 60 days after receipt of such notice
and an internal valuation will be obtained no later than 60 days after receipt
of such notice. Notwithstanding the foregoing, an Appraisal shall not be
required so long as a guaranty or surety bond that is rated at least "BBB-" (or
its equivalent) by a nationally recognized statistical rating organization, or
debt service reserve or a letter of credit is available and has the ability to
pay off the then outstanding Principal Balance of the Mortgage Loan in full,
except to the extent that the Special Servicer, in accordance with the Servicing
Standard, determines that obtaining an Appraisal is in the best interests of the
Certificateholders. Such Appraisal or valuation shall be conducted in accordance
with the definition of "market value" as set forth in 12 C.F.R. ss. 225.62 and
shall be updated at least annually to the extent such Mortgage Loan remains a
Required Appraisal Loan. The cost of any such Appraisal or valuation, if not
performed by the Special Servicer, shall be an expense of the Trust (and any
related B Note) and may be paid from REO Income or, to the extent collections
from such related Mortgage Loan, B Note, Loan Pair or Mortgaged Property does
not cover the expense, such unpaid expense shall be, subject to Section 4.4
hereof, advanced by the Master Servicer at the request of the Special Servicer
or by the Special Servicer pursuant to Section 4.6 in which event it shall be
treated as a Servicing Advance. The Master Servicer, based on the Appraisal or
internal valuation provided to it by the Special Servicer, shall calculate any
Appraisal Reduction. The Master Servicer shall calculate or recalculate the
Appraisal Reduction for any Mortgage Loan, the B Note and Loan Pair based on
updated Appraisals or internal valuations provided from time to time to it by
the Special Servicer and report such amount to the Trustee. Notwithstanding the
foregoing, the terms of this Section 6.9 shall not be applicable to the Xxxx
Xxxxxxx Tower Pari Passu Loan if the LB-UBS Series 2003-C5 Special Servicer
shall have performed such obligations with respect to such Mortgage Loan
pursuant to the terms of the LB-UBS Series 2003-C5 Pooling and Servicing
Agreement.
SECTION 6.10 COMPLIANCE WITH WITHHOLDING REQUIREMENTS.
Notwithstanding any other provision of this Agreement to the contrary, the
Paying Agent on behalf of the Trustee shall comply with all federal withholding
requirements with respect to payments to Certificateholders of interest,
original issue discount, or other amounts that the Paying Agent reasonably
believes are applicable under the Code. The consent of Certificateholders shall
not be required for any such withholding and any amount so withheld shall be
regarded as distributed to the related Certificateholders for purposes of this
Agreement. In the event the Paying Agent withholds any amount from payments made
to any Certificateholder pursuant to federal withholding requirements, the
Paying Agent shall indicate to such Certificateholder the amount withheld.
SECTION 6.11 PREPAYMENT PREMIUMS. Any Prepayment Premium
collected with respect to a Mortgage Loan (but not a B Note or the RSA Companion
Loan, which Prepayment Premium is payable to the holder of the related B Note or
the holder of the RSA
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Companion Loan, as applicable) during any particular Collection Period will be
deemed distributed to the Trustee by the Paying Agent on the following
Distribution Date as follows: (i) first, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC I Regular Interest to which
such Mortgage Loan relates, any Prepayment Premiums collected on or with respect
to such Mortgage Loan; and (ii) second, the Paying Agent shall be deemed to
distribute to the Trustee, as holder of the REMIC II Regular Interests, any
Prepayment Premiums deemed distributed to the REMIC I Regular Interests, and
shall be deemed to distribute such Prepayment Premiums to the REMIC II Regular
Interest then entitled to distributions of principal from the Principal
Distribution Amount (or, if more than one Class of REMIC II Regular Interests is
then entitled to distributions of principal from the Principal Distribution
Amount, such Prepayment Premiums shall be deemed distributed among such Classes
pro rata in accordance with the relevant amounts of entitlements to
distributions of principal). Following such deemed distributions, the Holders of
the respective Classes of Principal Balance Certificates, other than the Class
H, Class J, Class K, Class L, Class M and Class N Certificates, then entitled to
distributions of principal from the Principal Distribution Amount for such
Distribution Date, will be entitled to, and the Paying Agent on behalf of the
Trustee will pay to such Holder(s), an amount equal to, in the case of each such
Class, the product of (a) a fraction, the numerator of which is the amount
distributed as principal to the holders of that Class on that Distribution Date,
and the denominator of which is the total amount distributed as principal to the
holders of all Classes of Certificates on that Distribution Date, (b) the Base
Interest Fraction for the related Principal Prepayment and that Class of
Certificates and (c) the aggregate amount of Prepayment Premiums collected
during the related Collection Period. Any portion of such Prepayment Premium
that is not so distributed to the Holders of such Principal Balance Certificates
will be distributed to the Holders of the Class X Certificates. On any
Distribution Date on or before August 2008, 81% of the Prepayment Premium that
is not so distributed to the Holders of such Principal Balance Certificates will
be distributed to the Holders of the Class X-1 Certificates and 19% of the
Prepayment Premium that is not so distributed to the Holders of such Principal
Balance Certificates will be distributed to the Holders of the Class X-2
Certificates. After the Distribution Date in August 2008, any portion of such
Prepayment Premium that is not so distributed to the Holders of such Principal
Balance Certificates will be distributed to the Holders of the Class X-1
Certificates. The Trustee shall not be responsible for the Paying Agent's
failure to comply with any withholding requirements.
ARTICLE VII
CONCERNING THE TRUSTEE, THE FISCAL AGENT, THE PAYING AGENT AND
THE LUXEMBOURG PAYING AGENT
SECTION 7.1 DUTIES OF THE TRUSTEE, THE FISCAL AGENT AND THE
PAYING AGENT.
(a) The Trustee, the Fiscal Agent and the Paying Agent each
shall undertake to perform only those duties as are specifically set forth in
this Agreement and no implied covenants or obligations shall be read into this
Agreement against the Trustee, the Fiscal Agent or the Paying Agent. Any
permissive right of the Trustee, the Fiscal Agent or the Paying Agent provided
for in this Agreement shall not be construed as a duty of the Trustee, the
Fiscal Agent or the Paying Agent. The Trustee, the Fiscal Agent and the Paying
Agent each shall exercise such of the rights and powers vested in it by this
Agreement and following the occurrence and
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during the continuation of any Event of Default hereunder, the Trustee and
Fiscal Agent and the Paying Agent each shall use the same degree of care and
skill in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) The Trustee, the Fiscal Agent or the Paying Agent, as
applicable, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee, the
Fiscal Agent or the Paying Agent , as the case may be, which are specifically
required to be furnished pursuant to any provision of this Agreement, shall
examine them to determine whether they on their face conform to the requirements
of this Agreement; provided that the Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, shall not be responsible for the accuracy or content
of any such resolution, certificate, statement, opinion, report, document, order
or other instrument furnished by the Master Servicer or any other Person to it
pursuant to this Agreement. If any such instrument is found on its face not to
conform to the requirements of this Agreement, the Trustee or the Paying Agent
shall request the providing party to correct the instrument and if not so
corrected, the Trustee shall inform the Certificateholders.
(c) Neither the Trustee, the Fiscal Agent nor the Paying
Agent nor any of their respective directors, officers, employees, agents or
Controlling Persons shall have any liability to the Trust or the
Certificateholders arising out of or in connection with this Agreement, except
for their respective negligence or willful misconduct. No provision of this
Agreement shall be construed to relieve the Trustee, the Fiscal Agent, the
Paying Agent or any of their respective directors, officers, employees, agents
or Controlling Persons from liability for their own negligent action, their own
negligent failure to act or their own willful misconduct or bad faith; provided
that:
(i) neither the Trustee, the Fiscal Agent nor the
Paying Agent nor any of their respective directors, officers, employees, agents
or Controlling Persons shall be personally liable with respect to any action
taken, suffered or omitted to be taken by it in its reasonable business judgment
in accordance with this Agreement or at the direction of Holders of Certificates
evidencing not less than a majority of the outstanding Certificate Balance of
the Certificates;
(ii) no provision of this Agreement shall require
either the Trustee, the Fiscal Agent or the Paying Agent to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it;
(iii) neither the Trustee, the Fiscal Agent nor the
Paying Agent nor any of their respective directors, officers, employees, agents
or Controlling Persons shall be responsible for any act or omission of the
Master Servicer, the Special Servicer, the Depositor or either Seller, or for
the acts or omissions of each other, including, without limitation, in
connection with actions taken pursuant to this Agreement;
(iv) the execution by the Trustee or the Paying Agent
of any forms or plans of liquidation in connection with any REMIC Pool shall not
constitute a representation by the Trustee or the Paying Agent as to the
adequacy of such form or plan of liquidation;
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(v) none of the Trustee, the Fiscal Agent nor the
Paying Agent shall be under any obligation to appear in, prosecute or defend any
legal action which is not incidental to its duties as Trustee, the Fiscal Agent
or the Paying Agent, as applicable in accordance with this Agreement. In such
event, all legal expense and costs of such action shall be expenses and costs of
the Trust, and the Trustee, the Paying Agent and the Fiscal Agent shall be
entitled to be reimbursed therefor from the Certificate Account pursuant to
Section 5.2(a)(vi); and
(vi) neither the Trustee, the Fiscal Agent nor the
Paying Agent shall be charged with knowledge of any failure by the Master
Servicer or the Special Servicer or by each other to comply with its obligations
under this Agreement or any act, failure, or breach of any Person upon the
occurrence of which the Trustee, the Fiscal Agent or the Paying Agent may be
required to act, unless a Responsible Officer of the Trustee, the Fiscal Agent
or the Paying Agent, as the case may be, obtains actual knowledge of such
failure. (d) For so long as the Certificates are listed on the Luxembourg Stock
Exchange, the Depositor shall cause the continuing obligations under the listing
rules for the Luxembourg Stock Exchange to be complied with in respect of the
Certificates. The Trustee, the Fiscal Agent and the Paying Agent shall not be
liable for a failure in compliance with such continuing obligations under the
listing rules of the Luxembourg Stock Exchange if such failure is caused by the
negligence or willful misconduct of the Luxembourg Paying Agent.
SECTION 7.2 CERTAIN MATTERS AFFECTING THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT.
(a) Except as otherwise provided in Section 7.1:
(i) the Trustee, the Fiscal Agent and the Paying
Agent each may request, and may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) the Trustee, the Fiscal Agent and the Paying
Agent each may consult with counsel and the advice of such counsel and any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(iii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent nor any of their respective directors, officers, employees, agents
or Controlling Persons shall be personally liable for any action taken, suffered
or omitted by such Person in its reasonable business judgment and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(iv) the Trustee and the Paying Agent shall not be
under any obligation to exercise any remedies after default as specified in this
Agreement or to institute, conduct or defend any litigation hereunder or
relating hereto or make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
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request, consent, order, approval, bond or other paper or document (provided the
same appears regular on its face), unless requested in writing to do so by
Holders of at least 25% of the Aggregate Certificate Balance of the Certificates
then outstanding provided that, if the payment within a reasonable time to the
Trustee or the Paying Agent, as applicable, of the costs, expenses or
liabilities likely to be incurred by it in connection with the foregoing is, in
the opinion of such Person not reasonably assured to such Person by the security
afforded to it by the terms of this Agreement, such Person may require
reasonable indemnity against such expense or liability or payment of such
estimated expenses as a condition to proceeding. The reasonable expenses of the
Trustee or the Paying Agent, as applicable, shall be paid by the
Certificateholders requesting such examination;
(v) the Trustee, the Fiscal Agent and the Paying
Agent each may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys, which
agents or attorneys shall have any or all of the rights, powers, duties and
obligations of the Trustee, the Fiscal Agent and the Paying Agent conferred on
them by such appointment; provided that each of the Trustee, the Fiscal Agent
and the Paying Agent, as the case may be, shall continue to be responsible for
its duties and obligations hereunder and shall not be liable for the actions or
omissions of the Master Servicer, the Special Servicer, the Depositor or the
actions or omissions of each other;
(vi) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be required to obtain a deficiency judgment against a
Mortgagor;
(vii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be required to expend its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such liability is not assured to it;
(viii) neither the Trustee nor the Fiscal Agent nor the
Paying Agent shall be liable for any loss on any investment of funds pursuant to
this Agreement;
(ix) unless otherwise specifically required by law,
neither the Trustee nor the Fiscal Agent nor the Paying Agent shall be required
to post any surety or bond of any kind in connection with the execution or
performance of its duties hereunder; and
(x) except as specifically provided hereunder in
connection with the performance of its specific duties, neither the Trustee nor
the Fiscal Agent nor the Paying Agent shall be responsible for any act or
omission of the Master Servicer, the Special Servicer, the Depositor or of each
other.
(b) Following the Closing Date, the Trustee shall not
accept any contribution of assets to the Trust not specifically contemplated by
this Agreement unless the Trustee shall have received a Nondisqualification
Opinion at the expense of the Person desiring to contribute such assets with
respect to such contribution.
(c) All rights of action under this Agreement or under any
of the Certificates, enforceable by the Trustee, may be enforced by it without
the possession of any of the Certificates, or the production thereof at the
trial or any proceeding relating thereto, and any such
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suit, action or proceeding instituted by the Trustee shall be brought in its
name for the benefit of all the Holders of such Certificates, subject to the
provisions of this Agreement.
(d) The Trustee shall timely pay, from its own funds, the
amount of any and all federal, state and local taxes imposed on the Trust or its
assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Trustee of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Trustee.
(e) The Paying Agent shall timely pay, from its own funds,
the amount of any and all federal, state and local taxes imposed on the Trust or
its assets or transactions including, without limitation, (A) "prohibited
transaction" penalty taxes as defined in Section 860F of the Code, if, when and
as the same shall be due and payable, (B) any tax on contributions to a REMIC
after the Closing Date imposed by Section 860G(d) of the Code and (C) any tax on
"net income from foreclosure property" as defined in Section 860G(c) of the
Code, but only if such taxes arise out of a breach by the Paying Agent of its
obligations hereunder, which breach constitutes negligence or willful misconduct
of the Paying Agent.
SECTION 7.3 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT NOT LIABLE FOR CERTIFICATES OR INTERESTS OR MORTGAGE LOANS. The Trustee,
the Fiscal Agent and the Paying Agent each makes no representations as to the
validity or sufficiency of this Agreement, the information contained in the
Private Placement Memorandum, the Preliminary Prospectus Supplement, the Final
Prospectus Supplement or Prospectus for the REMIC III Certificates or Residual
Certificates (other than the Certificate of Authentication on the Certificates
if the Paying Agent is the Authenticating Agent) or of any Mortgage Loan,
Assignment of Mortgage or related document save that (i) each of the Trustee,
the Fiscal Agent and the Paying Agent represents that, assuming due execution
and delivery by the other parties hereto, this Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms except that such
enforceability may be subject to (A) applicable bankruptcy and insolvency laws
and other similar laws affecting the enforcement of the rights of creditors
generally, and (B) general principles of equity regardless of whether such
enforcement is considered in a proceeding in equity or at law and (ii) the
Trustee represents that, assuming due execution and delivery by the other
parties hereto, this Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation, enforceable against it
in accordance with its terms except that such enforceability may be subject to
(A) applicable bankruptcy and insolvency laws and other similar laws affecting
the enforcement of the rights of creditors generally, and (B) general principles
of equity regardless of whether such enforcement is considered in a proceeding
in equity or at law. None of the Trustee, the Fiscal Agent or the Paying Agent
shall be accountable for the use or application by the Depositor or the Master
Servicer or the Special Servicer or by each other of any of the Certificates or
any of the proceeds of such Certificates, or for the use or application by the
Depositor or the Master Servicer or the Special Servicer or by each other of
funds paid in consideration of the assignment of the Mortgage Loans to the Trust
or deposited into the Distribution Account or any other fund or account
maintained with respect to the Certificates or
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any account maintained pursuant to this Agreement or for investment of any such
amounts. No recourse shall be had for any claim based on any provisions of this
Agreement, the Private Placement Memorandum, the Preliminary Prospectus
Supplement, the Final Prospectus Supplement, the Prospectus or the Certificates
(except with respect to the Trustee and Fiscal Agent to the extent of
information furnished by the Trustee and the Fiscal Agent under the caption
entitled "DESCRIPTION OF THE OFFERED CERTIFICATES-- The Trustee and the Fiscal
Agent" and with respect to the Paying Agent, to the extent of information
furnished by the Paying Agent under the caption "DESCRIPTION OF THE OFFERED
CERTIFICATES-- Paying Agent, Certificate Registrar and Authenticating Agent"
each in the Preliminary Prospectus Supplement and the Final Prospectus
Supplement), the Mortgage Loans or the assignment thereof against the Trustee,
the Fiscal Agent or the Paying Agent in such Person's individual capacity and
any such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided herein. Neither the Trustee nor the Fiscal
Agent nor the Paying Agent shall be liable for any action or failure of any
action by the Depositor or the Master Servicer or the Special Servicer or by
each other hereunder. Neither the Trustee nor the Fiscal Agent nor the Paying
Agent shall at any time have any responsibility or liability for or with respect
to the legality, validity or enforceability of the Mortgages or the Mortgage
Loans, or the perfection and priority of the Mortgages or the maintenance of any
such perfection and priority, or for or with respect to the efficacy of the
Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any hazard insurance thereon; the validity of the assignment
of the Mortgage Loans to the Trust or of any intervening assignment; the
completeness of the Mortgage Loans; the performance or enforcement of the
Mortgage Loans (other than if the Trustee shall assume the duties of the Master
Servicer); the compliance by the Depositor, each Seller, the Mortgagor or the
Master Servicer or the Special Servicer or by each other with any warranty or
representation made under this Agreement or in any related document or the
accuracy of any such warranty or representation made under this Agreement or in
any related document prior to the receipt by a Responsible Officer of the
Trustee of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Master
Servicer or the Special Servicer or any loss resulting therefrom; the failure of
the Master Servicer or any Sub-Servicer or the Special Servicer to act or
perform any duties required of it on behalf of the Trustee hereunder; or any
action by the Trustee taken at the instruction of the Master Servicer or the
Special Servicer.
SECTION 7.4 THE TRUSTEE, THE FISCAL AGENT AND THE PAYING
AGENT MAY OWN CERTIFICATES. Each of the Trustee, the Fiscal Agent and the Paying
Agent in its individual or any other capacity may become the owner or pledgee of
Certificates with the same rights it would have if it were not the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be.
SECTION 7.5 ELIGIBILITY REQUIREMENTS FOR THE TRUSTEE, THE
FISCAL AGENT AND THE PAYING AGENT. The Trustee hereunder shall at all times be
(i) an institution insured by the FDIC, (ii) a corporation, national bank or
national banking association authorized to exercise corporate trust powers,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority, and (iii) an
institution whose short-term debt obligations are at all times rated not less
than "A-1" by S&P and "Prime-1" by
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Xxxxx'x and whose long-term senior unsecured debt is at all times rated not less
than "A+" by S&P and "Aa3" by Xxxxx'x, provided, that if the Fiscal Agent is
rated at least "Aa3" by Xxxxx'x and "AA-" by S&P (or "A+" by S&P if the Fiscal
Agent's short-term unsecured debt is rated at least "A-1" by S&P), then the
Trustee must be rated not less than "A3" by Xxxxx'x and "A-" by S&P, or
otherwise acceptable to the Rating Agencies as evidenced by a Rating Agency
Confirmation. If such corporation, national bank or national banking association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such corporation,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with provisions of this Section, the Trustee or the Fiscal Agent
shall resign immediately in the manner and with the effect specified in Section
7.6.
(b) The Paying Agent shall be either a bank or trust
company or otherwise authorized under law to exercise corporate trust powers and
shall be rated at least "A2" by Xxxxx'x and "A" by S&P, unless and to the extent
Rating Agency Confirmation is obtained.
SECTION 7.6 RESIGNATION AND REMOVAL OF THE TRUSTEE, THE
FISCAL AGENT OR THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent or the Paying Agent may
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Depositor, the Master Servicer and the Rating
Agencies; provided that such resignation shall not be effective until its
successor shall have accepted the appointment. Upon receiving such notice of
resignation, the Depositor will promptly appoint a successor trustee, fiscal
agent or paying agent, as the case may be, except in the case of the initial
Trustee or Fiscal Agent, in which case both shall be so replaced but may be
replaced under this paragraph sequentially, by written instrument, one copy of
which instrument shall be delivered to the resigning Trustee or the Fiscal
Agent, one copy to the successor trustee and one copy to each of the Master
Servicer, the Paying Agent and the Rating Agencies. If no successor trustee,
fiscal agent or paying agent shall have been so appointed, as the case may be,
and shall have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, the Fiscal Agent or the Paying
Agent, as the case may be, may petition any court of competent jurisdiction for
the appointment of a successor trustee, fiscal agent or paying agent, as the
case may be. It shall be a condition to the appointment of a successor trustee
or fiscal agent that such entity satisfies the eligibility requirements set
forth in Section 7.5.
(b) If at any time (i) the Trustee shall cease to be
eligible in accordance with the provisions of Section 7.5 and shall fail to
resign after written request therefor by the Depositor, (ii) the Trustee shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (iii) a
tax is imposed or threatened with respect to the Trust or any REMIC Pool by any
state in which the Trustee or the Trust held by the Trustee is located solely
because of the location of the Trustee in such state; provided, however, that,
if the Trustee agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this
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clause (iii), (iv) the continuation of the Trustee as such would result in a
downgrade, qualification or withdrawal of the rating by the Rating Agencies of
any Class of Certificates with a rating as evidenced in writing by the Rating
Agencies or (v) with respect with the initial Trustee, a Fiscal Agent
Termination Event has occurred unless the Trustee has satisfied the ratings
required by clause (iii) of Section 7.5, then the Depositor may remove such
Trustee and appoint a successor trustee by written instrument, one copy of which
instrument shall be delivered to the Trustee so removed, one copy to the
successor trustee and one copy to each of the Master Servicer and the Rating
Agencies. In the case of removal under clauses (i), (ii), (iii) and (iv) above,
the Trustee shall bear all such costs of transfer. Such succession shall take
effect after a successor trustee has been appointed. In the case of the removal
of the initial Trustee, the Depositor shall also remove the Fiscal Agent. In
this case, the procedures and liability for costs of such removal shall be the
same as they are stated in subsection (c) with respect to the Fiscal Agent.
(c) If at any time (i) the Fiscal Agent shall cease to be
eligible in accordance with the provisions of Section 7.5 and shall fail to
resign after written request therefor by the Depositor, or (ii) a Fiscal Agent
Termination Event has occurred, then the Depositor shall send a written notice
of termination to the Fiscal Agent (which notice shall specify the reason for
such termination) and remove such Fiscal Agent and appoint a successor Fiscal
Agent by written instrument, one copy of which instrument shall be delivered to
the Fiscal Agent so removed, one copy to the successor Fiscal Agent, and one
copy to each of the Trustee, the Master Servicer and the Rating Agencies. In all
such cases, the Fiscal Agent shall bear all costs of transfer to a successor
Fiscal Agent, such succession only to take effect after a successor Fiscal Agent
has been appointed. In the case of the initial Fiscal Agent, the Depositor may,
but is not required to, also remove the Trustee. In this case, the procedures
and liability for costs of such removal shall be the same as they are stated in
subsection (b) with respect to the Trustee.
(d) If at any time (i) the Paying Agent shall cease to be
eligible in accordance with the provisions of Section 7.5(b) and shall fail to
resign after written request therefor by the Depositor, (ii) the Paying Agent
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Paying Agent or of its property shall be appointed, or any
public officer shall take charge or control of the Paying Agent or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, (iii) a tax is imposed or threatened with respect to the Trust or
any REMIC Pool by any state in which the Paying Agent is located solely because
of the location of the Paying Agent in such state; provided, however, that, if
the Paying Agent agrees to indemnify the Trust for such taxes, it shall not be
removed pursuant to this clause (iii), or (iv) the continuation of the Paying
Agent as such would result in a downgrade, qualification or withdrawal, as
applicable, of the rating by any Rating Agency of any Class of Certificates with
a rating as evidenced in writing by the Rating Agencies, then the Depositor or
the Trustee shall send a written notice of termination to the Paying Agent
(which notice shall specify the reason for such termination) and remove such
Paying Agent and the Depositor shall appoint a successor Paying Agent by written
instrument, one copy of which instrument shall be delivered to the Paying Agent
so removed, one copy to the successor Paying Agent, and one copy to each of the
Trustee, the Master Servicer and the Rating Agencies. In all such cases, the
Paying Agent shall bear all costs of transfer to a successor Paying Agent, such
succession only to take effect after a successor Paying Agent has been
appointed.
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(e) The Holders of more than 50% of the Aggregate
Certificate Balance of the Certificates then outstanding may for cause upon 30
days' written notice to the Trustee, the Fiscal Agent or the Paying Agent, as
the case may be, and to the Depositor remove the Trustee, the Fiscal Agent or
the Paying Agent, as the case may be, by such written instrument, signed by such
Holders or their attorney-in-fact duly authorized, one copy of which instrument
shall be delivered to the Depositor and one copy to the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, so removed; the Depositor shall
thereupon use its best efforts to appoint a successor Trustee, Fiscal Agent or
Paying Agent, as the case may be, in accordance with this Section.
(f) Any resignation or removal of the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, and appointment of a successor
trustee, fiscal agent or paying agent pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee, fiscal agent or paying agent, as the case may be, as provided in
Section 7.7. Upon any succession of the Trustee, the Fiscal Agent or the Paying
Agent under this Agreement, the predecessor Trustee, Fiscal Agent or Paying
Agent, as the case may be, shall be entitled to the payment of compensation and
reimbursement agreed to under this Agreement for services rendered and expenses
incurred. The Trustee, the Fiscal Agent or the Paying Agent shall not be liable
for any action or omission of any successor Trustee, Fiscal Agent or Paying
Agent, as the case may be.
SECTION 7.7 SUCCESSOR TRUSTEE, FISCAL AGENT OR PAYING AGENT.
(a) Any successor Trustee, Fiscal Agent or Paying Agent
appointed as provided in Section 7.6 shall execute, acknowledge and deliver to
the Depositor and to its predecessor Trustee, Fiscal Agent or Paying Agent, as
the case may be, an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee, Fiscal Agent or
Paying Agent, as the case may be, shall become effective and such successor
Trustee, Fiscal Agent or Paying Agent, as the case may be, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as Trustee, Fiscal Agent or Paying Agent herein. The
predecessor Trustee, Fiscal Agent or Paying Agent shall deliver (at such
predecessor's own expense) to the successor Trustee, Fiscal Agent or Paying
Agent all Mortgage Files and documents and statements related to the Mortgage
Files held by it hereunder, and the predecessor Trustee shall duly assign,
transfer, deliver and pay over (at such predecessor's own expense) to the
successor Trustee, the entire Trust, together with all instruments of transfer
and assignment or other documents properly executed necessary to effect such
transfer. The predecessor Trustee, Fiscal Agent or Paying Agent, as the case may
be, shall also deliver all records or copies thereof maintained by the
predecessor Trustee, Fiscal Agent or Paying Agent in the administration hereof
as may be reasonably requested by the successor Trustee, Fiscal Agent or Paying
Agent, as applicable, and shall thereupon be discharged from all duties and
responsibilities under this Agreement. In addition, the Depositor and the
predecessor Trustee, Fiscal Agent or Paying Agent shall execute and deliver such
other instruments and do such other things as may reasonably be required to more
fully and certainly vest and confirm in the successor Trustee, Fiscal Agent or
Paying Agent, as the case may be, all such rights, powers, duties and
obligations. Anything herein to the contrary notwithstanding, in no event shall
the combined fees payable to a successor Trustee exceed the Trustee Fee.
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(b) No successor Trustee, Fiscal Agent or Paying Agent
shall accept appointment as provided in this Section unless at the time of such
appointment such successor Trustee, Fiscal Agent or Paying Agent, as the case
may be, shall be eligible under the provisions of Section 7.5.
(c) Upon acceptance of appointment by a successor Trustee,
Fiscal Agent or Paying Agent as provided in this Section, the successor Trustee,
Fiscal Agent or Paying Agent shall mail notice of the succession of such
Trustee, Fiscal Agent or Paying Agent hereunder to all Holders of Certificates
at their addresses as shown in the Certificate Register and to the Rating
Agencies. The expenses of such mailing shall be borne by the successor Trustee,
Fiscal Agent or Paying Agent. If the successor Trustee, Fiscal Agent or Paying
Agent fails to mail such notice within 10 days after acceptance of appointment
by the successor Trustee, Fiscal Agent or Paying Agent, the Master Servicer
shall cause such notice to be mailed at the expense of the successor Trustee,
Fiscal Agent or Paying Agent, as applicable.
SECTION 7.8 MERGER OR CONSOLIDATION OF TRUSTEE, FISCAL AGENT
OR PAYING AGENT. Any Person into which the Trustee, Fiscal Agent or Paying Agent
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Trustee,
Fiscal Agent or Paying Agent shall be a party, or any Persons succeeding to the
business of such Trustee, Fiscal Agent or Paying Agent, shall be the successor
of such Trustee, Fiscal Agent or Paying Agent, as the case may be, hereunder, as
applicable, provided that such Person shall be eligible under the provisions of
Section 7.5, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.9 APPOINTMENT OF CO-TRUSTEE, SEPARATE TRUSTEE,
AGENTS OR CUSTODIAN.
(a) Notwithstanding any other provisions hereof, at any
time, the Trustee, the Depositor or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Certificate Balance
of the Certificates then outstanding shall each have the power from time to time
to appoint one or more Persons to act either as co-trustees jointly with the
Trustee or as separate trustees, or as custodians, for the purpose of holding
title to, foreclosing or otherwise taking action with respect to any Mortgage
Loan outside the state where the Trustee has its principal place of business
where such separate trustee or co-trustee is necessary or advisable (or the
Trustee is advised by the Master Servicer or Special Servicer that such separate
trustee or co-trustee is necessary or advisable) under the laws of any state in
which a property securing a Mortgage Loan is located or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
state in which a property securing a Mortgage Loan is located or in any state in
which any portion of the Trust is located. The separate trustees, co-trustees,
or custodians so appointed shall be trustees or custodians for the benefit of
all the Certificateholders, shall have such powers, rights and remedies as shall
be specified in the instrument of appointment and shall be deemed to have
accepted the provisions of this Agreement; provided that no such appointment
shall, or shall be deemed to, constitute the appointee an agent of the Trustee;
provided, further that the Trustee shall be liable for the actions of any
co-trustee or separate trustee appointed by it and shall have no liability for
the actions of
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any co-trustee or separate trustee appointed by the Depositor or the
Certificateholders pursuant to this paragraph.
(b) The Trustee or the Paying Agent, as the case may be,
may from time to time appoint one or more independent third-party agents to
perform all or any portion of its administrative duties hereunder (i.e.,
collection and distribution of funds, preparation and dissemination of reports,
monitoring compliance, etc.). The Trustee or the Paying Agent, as the case may
be, shall supervise and oversee such agents appointed by it. The terms of any
arrangement or agreement between the Trustee or the Paying Agent, as the case
may be, and such agent, may be terminated, without cause and without the payment
of any termination fees in the event the Trustee or the Paying Agent, as the
case may be, is terminated in accordance with this Agreement. In addition,
neither the Trust nor the Certificateholders shall have any liability or direct
obligation to such agent. Notwithstanding the terms of any such agreement, the
Trustee or the Paying Agent, as the case may be, shall remain at all times
obligated and liable to the Trust and the Certificateholders for performing its
duties hereunder.
(c) Every separate trustee, co-trustee, and custodian
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all powers, duties, obligations and rights
conferred upon the Trustee in respect of the receipt, custody and payment of
moneys shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee, co-trustee, or
custodian jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer hereunder) the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations, including the holding of title to the
Trust or any portion thereof in any such jurisdiction, shall be exercised and
performed by such separate trustee, co-trustee, or custodian;
(iii) no trustee or custodian hereunder shall be
personally liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or, in the case of the Trust, the
Certificateholders evidencing more than 50% of the Aggregate Principal Amount of
the Certificates then outstanding may at any time accept the resignation of or
remove any separate trustee, co-trustee or custodian, so appointed by it or
them, if such resignation or removal does not violate the other terms of this
Agreement.
(d) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee or custodian shall refer to this
Agreement and the conditions of this Article VII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every
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provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Every such instrument shall be
filed with the Trustee.
(e) Any separate trustee, co-trustee or custodian may, at
any time, constitute the Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Agreement on its behalf and in its name. If any separate
trustee, co-trustee or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
(f) No separate trustee, co-trustee or custodian hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 7.5 hereof and no notice to Certificateholders of the appointment of any
separate trustee, co-trustee or custodian hereunder shall be required.
(g) The Trustee agrees to instruct the co-trustees, if any,
to the extent necessary to fulfill the Trustee's obligations hereunder.
(h) The Trustee shall pay the reasonable compensation of
the co-trustees, separate trustees or custodians appointed by the Trustee
pursuant to this Section 7.9 to the extent, and in accordance with the
standards, specified in Section 7.12 hereof.
(i) Subject to the consent of the Depositor, which consent
shall not be unreasonably withheld, the Trustee, at its sole cost and expense,
may appoint at any time a successor Custodian. Until such time as the Trustee
appoints a successor Custodian, the Trustee shall be the Custodian hereunder.
Upon the appointment of a successor custodian, the Trustee and the Custodian
shall enter into a custodial agreement.
SECTION 7.10 AUTHENTICATING AGENTS.
(a) The Paying Agent shall serve as the initial
Authenticating Agent hereunder for the purpose of executing and authenticating
Certificates. Any successor Authenticating Agent must be acceptable to the
Depositor and must be a corporation or national bank organized and doing
business under the laws of the United States of America or of any state and
having a principal office and place of business in the Borough of Manhattan in
the City and State of New York, having a combined capital and surplus of at
least $50,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by federal or state authorities.
(b) Any Person into which the Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the
Authenticating Agent shall be a party, or any Person succeeding to the corporate
agency business of the Authenticating Agent, shall continue to be the
Authenticating Agent without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
(c) The Authenticating Agent may at any time resign by
giving at least 30 days' advance written notice of resignation to the Trustee
and the Depositor. The Trustee may at
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any time terminate the agency of the Authenticating Agent by giving written
notice of termination to the Authenticating Agent and the Depositor; provided
that the Trustee may not terminate the Paying Agent as Authenticating Agent
unless the Paying Agent shall be removed as Paying Agent hereunder. Upon
receiving a notice of resignation or upon such a termination, or in case at any
time the Authenticating Agent shall cease to be eligible in accordance with the
provisions of Section 7.10(a), the Trustee may appoint a successor
Authenticating Agent, shall give written notice of such appointment to the
Depositor and shall mail notice of such appointment to all Holders of
Certificates. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers, duties
and responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent. No such Authenticating Agent shall be
appointed unless eligible under the provisions of Section 7.10(a). No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 7.11 INDEMNIFICATION OF TRUSTEE, THE FISCAL AGENT AND
THE PAYING AGENT.
(a) The Trustee, the Fiscal Agent, the Certificate
Registrar and the Paying Agent and each of its respective directors, officers,
employees, agents and Controlling Persons shall be entitled to indemnification
from the Trust for any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action incurred without
negligence or willful misconduct on their respective part, arising out of, or in
connection with this Agreement, the Certificates and the acceptance or
administration of the trusts or duties created hereunder (including, without
limitation, any unanticipated loss, liability or expense incurred in connection
with any action or inaction of the Master Servicer, the Special Servicer or the
Depositor or of each other such Person hereunder but only to the extent the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, is unable to recover within a reasonable period of time such amount
from such third party pursuant to this Agreement) including the costs and
expenses of defending themselves against any claim in connection with the
exercise or performance of any of their powers or duties hereunder and the
Trustee, the Fiscal Agent, the Certificate Registrar and the Paying Agent and
each of their respective directors, officers, employees, agents and Controlling
Persons shall be entitled to indemnification from the Trust for any
unanticipated loss, liability or expense incurred in connection with the
provision by the Trustee, the Fiscal Agent, the Certificate Registrar and the
Paying Agent of the reports required to be provided by it pursuant to this
Agreement; provided that:
(i) with respect to any such claim, the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may be,
shall have given the Depositor, the Master Servicer, the Sellers, each other and
the Holders of the Certificates written notice thereof promptly after a
Responsible Officer of the Trustee, the Fiscal Agent, the Certificate Registrar
or the Paying Agent, as the case may be, shall have knowledge thereof; provided,
however, that failure to give such notice to the Depositor, Master Servicer, the
Sellers, each other and the Holders of Certificates shall not affect the
Trustee's, Fiscal Agent's, Certificate Registrar's or Paying Agent's, as the
case may be, rights to indemnification herein unless the Depositor's defense of
such claim on behalf of the Trust is materially prejudiced thereby;
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(ii) while maintaining control over its own defense,
the Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as
the case may be, shall cooperate and consult fully with the Depositor in
preparing such defense; and
(iii) notwithstanding anything to the contrary in this
Section 7.11, the Trust shall not be liable for settlement of any such claim by
the Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as
the case may be, entered into without the prior consent of the Depositor, which
consent shall not be unreasonably withheld.
(b) The provisions of this Section 7.11 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent, the Certificate Registrar or the Paying Agent, as the case may be.
(c) The Depositor shall indemnify and hold harmless the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, their respective directors, officers, employees or agents and
Controlling Persons from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, their
respective directors, officers, employees or agents or Controlling Person may
become subject under the 1933 Act, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Private Placement
Memorandum, the Preliminary Prospectus Supplement, the Final Prospectus
Supplement or the Prospectus, or arises out of, or is based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made, not misleading and shall reimburse the Trustee, the Fiscal
Agent, the Certificate Registrar or the Paying Agent, as the case may be, their
respective directors, officers, employees, agents or Controlling Person for any
legal and other expenses reasonably incurred by the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, or any such
director, officer, employee, agent or Controlling Person in investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action; provided, that the Depositor shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue statement or omission
made in any such Private Placement Memorandum, Preliminary Prospectus
Supplement, Final Prospectus Supplement or Prospectus in reliance upon and in
conformity with written information concerning the Trustee, the Fiscal Agent,
the Certificate Registrar or the Paying Agent, as the case may be, furnished to
the Depositor by or on behalf of such person specifically for inclusion therein.
It is hereby expressly agreed that the only written information provided by the
Trustee, the Fiscal Agent, the Certificate Registrar or the Paying Agent, as the
case may be, for inclusion in the Preliminary Prospectus Supplement and Final
Prospectus Supplement is set forth in the case of the Trustee in the second,
fourth and fifth sentences and in the case of the Fiscal Agent in the
penultimate sentence under the caption entitled "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Trustee and the Fiscal Agent" and in the case of the Paying
Agent, the third and fourth sentences under the "DESCRIPTION OF THE OFFERED
CERTIFICATES--The Paying Agent, Certificate Registrar and the Authenticating
Agent". The Trustee, the Fiscal Agent, the Certificate Registrar or the Paying
Agent, as the case may be, shall immediately notify the Depositor and the
Sellers if a claim is made by a third party with respect to this Section 7.11(c)
entitling such person, its directors, officers, employees, agents or Controlling
Person to
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indemnification hereunder, whereupon the Depositor shall assume the defense of
any such claim (with counsel reasonably satisfactory to such person) and pay all
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the Depositor shall not
affect any rights the Trustee, the Fiscal Agent, the Certificate Registrar or
the Paying Agent, as the case may be, their respective directors, officers,
employees, agents or Controlling Person may have to indemnification under this
Section 7.11(c), unless the Depositor's defense of such claim is materially
prejudiced thereby. The indemnification provided herein shall survive the
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent or the Paying Agent. The Depositor shall not be indemnified by the
Trust for any expenses incurred by the Depositor arising from any violation or
alleged violation of the 1933 Act or 1934 Act by the Depositor.
SECTION 7.12 FEES AND EXPENSES OF TRUSTEE, THE FISCAL AGENT
AND THE PAYING AGENT. The Trustee shall be entitled to receive the Trustee Fee
(other than the portion thereof constituting the Paying Agent Fee) and the
Paying Agent shall be entitled to receive the Paying Agent Fee, pursuant to
Section 5.3(b)(ii) (which shall not be limited by any provision of law with
respect to the compensation of a trustee of an express trust), for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties respectively, hereunder of the
Trustee and the Paying Agent. The Trustee, the Fiscal Agent and the Paying Agent
shall also be entitled to recover from the Trust all reasonable unanticipated
expenses and disbursements incurred or made by the Trustee, the Fiscal Agent and
the Paying Agent in accordance with any of the provisions of this Agreement
(including the reasonable compensation and the reasonable expenses and
disbursements of its counsel and other Persons not regularly in its employ), not
including expenses incurred in the ordinary course of performing its duties as
Trustee, Fiscal Agent or Paying Agent, respectively hereunder, and except any
such expense, disbursement or advance as may arise from the negligence or bad
faith of such Person or which is the responsibility of the Holders of the
Certificates hereunder. The provisions of this Section 7.12 shall survive any
termination of this Agreement and the resignation or removal of the Trustee, the
Fiscal Agent or the Paying Agent.
SECTION 7.13 COLLECTION OF MONEYS. Except as otherwise
expressly provided in this Agreement, the Trustee and the Paying Agent may
demand payment or delivery of, and shall receive and collect, all money and
other property payable to or receivable by the Trustee or the Paying Agent, as
the case may be, pursuant to this Agreement. The Trustee or the Paying Agent, as
the case may be, shall hold all such money and property received by it as part
of the Trust and shall distribute it as provided in this Agreement. If the
Trustee or the Paying Agent, as the case may be, shall not have timely received
amounts to be remitted with respect to the Mortgage Loans from the Master
Servicer, the Trustee or the Paying Agent, as the case may be, shall request the
Master Servicer to make such distribution as promptly as practicable or legally
permitted. If the Trustee or the Paying Agent, as the case may be, shall
subsequently receive any such amount, it may withdraw such request.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Master Servicer is terminated
pursuant to this Agreement, the Trustee shall be the successor in all respects
to the Master Servicer in its capacity
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under this Agreement and the transactions set forth or provided for therein and
shall have all the rights and powers and be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer by the terms and provisions of this Agreement; provided that,
any failure to perform such duties or responsibilities caused by the Master
Servicer's failure to provide required information shall not be considered a
default by the Trustee hereunder. In addition, the Trustee shall have no
liability relating to (i) the representations and warranties of the Master
Servicer contained in this Agreement or (ii) any obligation incurred by the
Master Servicer prior to its termination or resignation (including, without
limitation, the Master Servicer's obligation to repay losses resulting from the
investment of funds in any account established under this Agreement), except any
ongoing obligations to a Primary Servicer arising after the termination of the
Master Servicer from their servicing rights and obligations under the applicable
Primary Servicing Agreement. In the Trustee's capacity as such successor, the
Trustee shall have the same limitations on liability granted to the Master
Servicer in this Agreement. As compensation therefor, the Trustee shall be
entitled to receive all the compensation payable to the Master Servicer set
forth in this Agreement, including, without limitation, the Master Servicing
Fee.
(b) Notwithstanding the above, the Trustee (A) may, if the
Trustee is unwilling to so act, or (B) shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint any
established commercial or multifamily mortgage finance institution, servicer or
special servicer or mortgage servicing institution having a net worth of not
less than $15,000,000, meeting such other standards for a successor servicer as
are set forth in this Agreement and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Master Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
servicer as Master Servicer hereunder. Pending any such appointment, the Trustee
shall act as the Master Servicer as hereinabove provided. Any entity designated
by the Trustee as successor Master Servicer may be an Affiliate of the Trustee;
provided that, such Affiliate must meet the standards for the Master Servicer as
set forth herein. In connection with such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree subject to
Section 8.10. The Trustee and such successor shall take such actions, consistent
with this Agreement as shall be necessary to effectuate any such succession. The
Master Servicer shall cooperate with the Trustee and any successor servicer in
effecting the termination of the Master Servicer's responsibilities and rights
under this Agreement, including, without limitation, notifying Mortgagors of the
assignment of the servicing function and providing the Trustee and successor
servicer all documents and records in its possession in electronic or other form
reasonably requested by the successor servicer to enable the successor servicer
to assume the Master Servicer's functions hereunder and the transfer to the
Trustee or such successor servicer of all amounts which shall at the time be or
should have been deposited by the Master Servicer in the Certificate Account and
any other account or fund maintained with respect to the Certificates or
thereafter be received by the Master Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor servicer shall be deemed to
be in default hereunder by reason of any failure to make, or any delay in
making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Master Servicer to deliver, or any delay in delivering, cash,
documents or records to it, or (ii) restrictions imposed by any regulatory
authority having jurisdiction over the Master Servicer. The Trustee shall be
reimbursed for all of its out-of-pocket expenses incurred in connection with
obtaining such successor Master Servicer by the Trust within 30 days of the
Trustee's submission of an invoice with respect thereto, to the extent such
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expenses have not been reimbursed by the Master Servicer as provided herein;
such expenses paid by the Trust shall be deemed to be an Additional Trust
Expense.
(c) On and after the time the Special Servicer is
terminated pursuant to this Agreement, in accordance with Section 9.30, the
Trustee shall be the successor in all respects to the Special Servicer in its
capacity under this Agreement and the transactions set forth or provided for
therein and shall have all the rights and powers and be subject to all the
responsibilities, duties and liabilities relating thereto and arising thereafter
placed on the Special Servicer by the terms and provisions of this Agreement;
provided that, any failure to perform such duties or responsibilities caused by
the Special Servicer's failure to provide required information shall not be
considered a default by the Trustee hereunder. In addition, the Trustee shall
have no liability relating to (i) the representations and warranties of the
Special Servicer contained in this Agreement or (ii) any obligation incurred by
the Special Servicer prior to its termination or resignation. In the Trustee's
capacity as such successor, the Trustee shall have the same limitations on
liability granted to the Special Servicer in this Agreement. As compensation
therefor, the Trustee shall be entitled to receive all the compensation payable
to the Special Servicer set forth in this Agreement, including, without
limitation the Special Servicer Compensation (other than any Work-Out Fee
payable pursuant to Section 9.11).
(d) Notwithstanding the above, the Trustee may, if the
Trustee shall be unwilling to so act, or shall, if it is unable to so act,
appoint, or petition a court of competent jurisdiction to appoint, any
established commercial or multifamily mortgage finance institution, special
servicer or mortgage servicing institution having a net worth of not less than
$15,000,000, and meeting such other standards for a successor Special Servicer
as are set forth in Section 9.21, and with respect to which Rating Agency
Confirmation is obtained, as the successor to the Special Servicer hereunder in
the assumption of all of the responsibilities, duties or liabilities of a
special servicer as Special Servicer hereunder. Pending any such appointment,
the Trustee shall act as the Special Servicer as hereinabove provided. Any
entity designated by the Trustee as successor Special Servicer may be an
Affiliate of the Trustee; provided that, such Affiliate must meet the standards
for a successor Special Servicer set forth herein. In connection with such
appointment and assumption, the Trustee may make such arrangements for the
compensation of such successor out of payments on Mortgage Loans as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted to the Special Servicer under this Agreement. The Trustee and
such successor shall take such actions, consistent with this Agreement as shall
be necessary to effectuate any such succession. The Special Servicer shall
cooperate with the Trustee and any successor Special Servicer in effecting the
termination of the Special Servicer's responsibilities and rights under this
Agreement, including, without limitation, notifying Mortgagors of Specially
Serviced Mortgage Loans of the assignment of the special servicing function and
providing the Trustee and successor Special Servicer all documents and records
in its possession in electronic or other form reasonably requested by the
successor Special Servicer to enable the successor Special Servicer to assume
the Special Servicer's functions hereunder and the transfer to the Trustee or
such successor Special Servicer of all amounts which shall at the time be or
should have been deposited by the Special Servicer in the Certificate Account
and any other account or fund maintained with respect to the Certificates or
thereafter be received by the Special Servicer with respect to the Mortgage
Loans. Neither the Trustee nor any other successor Special Servicer shall be
deemed to be in default hereunder by reason of any failure to make, or any delay
in making, any distribution hereunder or any portion thereof caused by (i) the
failure of the Special Servicer to
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deliver, or any delay in delivering, cash, documents or records to it, or (ii)
restrictions imposed by any regulatory authority having jurisdiction over the
Special Servicer. The Trustee shall be reimbursed for all of its out-of-pocket
expenses incurred in connection with obtaining such successor Special Servicer
by the Trust within 30 days of submission of an invoice with respect thereto but
only to the extent such expenses have not been reimbursed by the Special
Servicer as provided herein; and such expenses paid by the Trust shall be deemed
to be an Additional Trust Expense.
SECTION 7.15 NOTIFICATION TO HOLDERS. Upon termination of the
Master Servicer, the Paying Agent or the Special Servicer, or appointment of a
successor to the Master Servicer, the Paying Agent or the Special Servicer, the
Trustee shall promptly mail notice thereof by first class mail to the Rating
Agencies, the Operating Adviser, the Sellers and the Certificateholders at their
respective addresses appearing on the Certificate Register.
SECTION 7.16 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE,
THE FISCAL AGENT AND THE PAYING AGENT.
(a) The Trustee hereby represents and warrants as of the
date hereof that:
(i) the Trustee is a national banking association,
duly organized, validly existing and in good standing under the laws governing
its creation and existence and has full power and authority to own its property,
to carry on its business as presently conducted, and to enter into and perform
its obligations under this Agreement;
(ii) the execution and delivery by the Trustee of
this Agreement have been duly authorized by all necessary action on the part of
the Trustee; neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated in this Agreement, nor compliance
with the provisions of this Agreement, will conflict with or result in a breach
of, or constitute a default under, (i) any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Trustee
or its properties that would materially and adversely affect the Trustee's
ability to perform its obligations under this Agreement, (ii) the organizational
documents of the Trustee, or (iii) the terms of any material agreement or
instrument to which the Trustee is a party or by which it is bound; the Trustee
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any federal, state, municipal or other governmental
agency, which default would materially and adversely affect its performance
under this Agreement;
(iii) the execution, delivery and performance by the
Trustee of this Agreement and the consummation of the transactions contemplated
by this Agreement do not require the consent, approval, authorization or order
of, the giving of notice to or the registration with any state, federal or other
governmental authority or agency, except such as has been or will be obtained,
given, effected or taken in order for the Trustee to perform its obligations
under this Agreement;
(iv) this Agreement has been duly executed and
delivered by the Trustee and, assuming due authorization, execution and delivery
by the other parties hereto, constitutes a valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms, subject,
as to enforcement of remedies, to applicable bankruptcy,
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reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to the Trustee's
knowledge, threatened, against the Trustee that, either in one instance or in
the aggregate, would draw into question the validity of this Agreement, or which
would be likely to impair materially the ability of the Trustee to perform under
the terms of this Agreement.
(b) The Fiscal Agent hereby represents and warrants as of
the date hereof that:
(i) the Fiscal Agent is a foreign banking
corporation duly organized, validly existing and in good standing under the laws
governing its creation and existence and has full corporate power and authority
to own its property, to carry on its business as presently conducted, and to
enter into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Fiscal Agent
of this Agreement have been duly authorized by all necessary corporate action on
the part of the Fiscal Agent; neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated in this
Agreement, nor compliance with the provisions of this Agreement, will conflict
with or result in a breach of, or constitute a default under, (i) any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on the Fiscal Agent or its properties that would materially and
adversely affect the Fiscal Agent's ability to perform its obligations under
this Agreement, (ii) the organizational documents of the Fiscal Agent, or (iii)
the terms of any material agreement or instrument to which the Fiscal Agent is a
party or by which it is bound; the Fiscal Agent is not in default with respect
to any order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency, which default would
materially and adversely affect its performance under this Agreement;
(iii) the execution, delivery and performance by the
Fiscal Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to, or the registration with,
any state, federal or other governmental authority or agency, except such as has
been obtained, given, effected or taken prior to the date hereof;
(iv) this Agreement has been duly executed and
delivered by the Fiscal Agent and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding obligation
of the Fiscal Agent, enforceable against the Fiscal Agent in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) no litigation is pending or, to the Fiscal
Agent's knowledge, threatened, against the Fiscal Agent that, either in any one
instance or in the aggregate, would draw into question the validity of this
Agreement, or which would be likely to impair materially the ability of the
Fiscal Agent to perform under the terms of this Agreement.
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(c) The Paying Agent hereby represents and warrants as of
the date hereof that:
(i) the Paying Agent is a national banking
association, duly organized, validly existing and in good standing under the
laws governing its creation and existence and has full power and authority to
own its property, to carry on its business as presently conducted, and to enter
into and perform its obligations under this Agreement;
(ii) the execution and delivery by the Paying Agent
of this Agreement have been duly authorized by all necessary action on the part
of the Paying Agent; neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated in this Agreement, nor
compliance with the provisions of this Agreement, will conflict with or result
in a breach of, or constitute a default under, (i) any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Paying Agent or its properties that would materially and adversely affect the
Paying Agent's ability to perform its obligations under this Agreement, (ii) the
organizational documents of the Paying Agent, or (iii) the terms of any material
agreement or instrument to which the Paying Agent is a party or by which it is
bound; the Paying Agent is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
other governmental agency, which default would materially and adversely affect
its performance under this Agreement;
(iii) the execution, delivery and performance by the
Paying Agent of this Agreement and the consummation of the transactions
contemplated by this Agreement do not require the consent, approval,
authorization or order of, the giving of notice to or the registration with any
state, federal or other governmental authority or agency, except such as has
been or will be obtained, given, effected or taken in order for the Paying Agent
to perform its obligations under this Agreement;
(iv) this Agreement has been duly executed and
delivered by the Paying Agent and, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid and binding obligation
of the Paying Agent, enforceable against the Paying Agent in accordance with its
terms, subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium and other similar laws affecting
creditors' rights generally as from time to time in effect, and to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and
(v) there are no actions, suits or proceeding
pending or, to the best of the Paying Agent's knowledge, threatened, against the
Paying Agent that, either in one instance or in the aggregate, would draw into
question the validity of this Agreement, or which would be likely to impair
materially the ability of the Paying Agent to perform under the terms of this
Agreement.
SECTION 7.17 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE TRUSTEE, THE FISCAL AGENT AND THE PAYING AGENT. Each of
the Trustee, the Fiscal Agent and the Paying Agent, at its own respective
expense, shall maintain in effect a Fidelity Bond and a Errors and Omissions
Insurance Policy. The Errors and Omissions Insurance Policy and Fidelity Bond
shall be issued by a Qualified Insurer in form and in amount
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customary for trustees, fiscal agents or paying agents in similar transactions
(unless the Trustee, the Fiscal Agent or the Paying Agent, as the case may be,
self insures as provided below). In the event that any such Errors and Omissions
Insurance Policy or Fidelity Bond ceases to be in effect, the Trustee, the
Fiscal Agent or the Paying Agent, as the case may be, shall obtain a comparable
replacement policy or bond from an insurer or issuer meeting the requirements
set forth above as of the date of such replacement. So long as the long-term
debt rating of the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, is not less than "Baa1" as rated by Xxxxx'x, if rated by Xxxxx'x and
"BBB" as rated by S&P, if rated by S&P, respectively, the Trustee, the Fiscal
Agent or the Paying Agent, as the case may be, may self-insure for the Fidelity
Bond and the Errors and Omissions Insurance Policy.
SECTION 7.18 APPOINTMENT OF LUXEMBOURG PAYING AGENT;
NOTIFICATION TO CERTIFICATEHOLDERS.
(a) The Depositor shall maintain a paying agent in
Luxembourg (the "Luxembourg Paying Agent") for payments on the Certificates as
well as a transfer agent in Luxembourg (the "Luxembourg Transfer Agent") for so
long as such Certificates are listed on the Luxembourg Stock Exchange and the
rules of such exchange so require and the Depositor shall pay the reasonable
fees of such Luxembourg Paying Agent and Luxembourg Transfer Agent. The
Depositor shall appoint a successor Luxembourg Paying Agent if necessary. Except
as set forth in this Section 7.18(a), neither the Trustee nor the Paying Agent
shall have any responsibility for the actions or inactions of the Luxembourg
Paying Agent, including any failure of the Luxembourg Paying Agent to make
timely distributions to Certificateholders or beneficial owners (other than any
such failure resulting from the failure of the Paying Agent to timely remit
funds but only to the extent such failure is caused by the Paying Agent's
negligence or willful misconduct). The Certificate Registrar shall not be
responsible for transfers or exchanges requested at the office of the Luxembourg
Transfer Agent in Luxembourg until it receives written notice from such transfer
agent, together with the Certificates to be transferred or exchanged. The
Luxembourg Paying Agent shall each month download copies of all information made
available on the Paying Agent's internet website, print such information and
make it available to the Certificateholders upon request. The Luxembourg Paying
Agent shall not be the Paying Agent and the duties of the Luxembourg Paying
Agent hereunder shall be distinct from the duties of the Paying Agent.
(b) For so long as the Certificates are listed on the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Depositor undertakes to cause the Luxembourg Paying Agent to
publish all notices to Certificateholders in a daily newspaper of general
circulation in Luxembourg.
(c) For so long as any of the Certificates are listed on
the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so
require, the Paying Agent shall make available or provide the following
information on the Paying Agent's internet website:
(i) to Clearstream Bank, Euroclear Bank and the
Luxembourg Paying Agent promptly upon determination, the Pass-Through Rates for
the related Interest Accrual Period, the amount of principal and interest
distributable on the related Distribution Date for each Class of Certificates,
per $1,000 initial Certificate Balance or Notional Amount and the date each
distribution will be made;
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(ii) to the Luxembourg Paying Agent on each
Distribution Date, the Certificate Balance or Notional Amount of the
Certificates;
(iii) to the Luxembourg Paying Agent promptly
following availability, each report, certificate or statement required to be
delivered to the Luxembourg Paying Agent pursuant to Section 5.4;
(iv) to the Luxembourg Paying Agent promptly
following receipt thereof, all notices and reports regarding any termination of
the Trustee or Paying Agent or appointment of a successor to the Trustee or
Paying Agent; and
(v) to the Luxembourg Paying Agent promptly
following receipt thereof, all notices and reports regarding any occurrence of
an Event of Default.
Information provided, as set forth above, by the Paying Agent
to the Luxembourg Paying Agent shall be supplied by the Luxembourg Paying Agent
to the Luxembourg Stock Exchange. Such information shall be made available to
the Certificateholders at the main office of the Luxembourg Paying Agent.
None of the Certificates will be listed on the Luxembourg
Stock Exchange or any other stock exchange.
ARTICLE VIII
ADMINISTRATION AND SERVICING OF MORTGAGE LOANS
SECTION 8.1 SERVICING STANDARD; SERVICING DUTIES.
(a) Subject to the express provisions of this Agreement,
for and on behalf of the Trust and for the benefit of the Certificateholders as
a whole, and, solely as it relates to any A/B Mortgage Loan and Loan Pair, for
the benefit of the holder of the related B Note and the RSA Companion Loan, the
Master Servicer shall service and administer the Mortgage Loans, any B Note and
the RSA Companion Loan in accordance with the Servicing Standard and the terms
of this Agreement (subject to the servicing of the Xxxx Xxxxxxx Tower Pari Passu
Loan by the LB-UBS Series 2003-C5 Master Servicer and the LB-UBS Series 2003-C5
Special Servicer in accordance with the LB-UBS Series 2003-C5 Pooling and
Servicing Agreement). Certain of the provisions of this Article VIII make
explicit reference to their applicability to Mortgage Loans, any B Note and the
RSA Companion Loan; notwithstanding such explicit references, references to
"Mortgage Loans" contained in this Article VIII, unless otherwise specified,
shall be construed to refer also to such B Note and the RSA Companion Loan (but
any other terms that are defined in Article I and used in this Article VIII
shall be construed according to such definitions without regard to this
sentence).
In connection with such servicing and administration, the
Master Servicer shall seek to maximize the timely recovery of principal and
interest on the Mortgage Notes in the best economic interests of the
Certificateholders as a whole (or, in the case of any A/B Mortgage Loan or Loan
Pair, the Certificateholders and the holder of the related B Note and the RSA
Companion Loan, all taken as a collective whole); provided, however, that
nothing herein
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contained shall be construed as an express or implied guarantee by the Master
Servicer of the collectability of payments on the Mortgage Loans or shall be
construed as impairing or adversely affecting any rights or benefits
specifically provided by this Agreement to the Master Servicer, including with
respect to Master Servicing Fees or the right to be reimbursed for Advances.
(b) The Master Servicer, in the case of an event specified
in clause (x) of this subclause (b), and the Special Servicer, in the case of an
event specified in clause (y) of this subclause (b), shall each send a written
notice to the other and to the Trustee and the Paying Agent, the Operating
Adviser, each Seller and, in the case of an A/B Mortgage Loan, the holder of the
related B Note and, in the case of the Loan Pair, the holder of the RSA
Companion Loan, within two Business Days after becoming aware (x) that a
Servicing Transfer Event has occurred with respect to a Mortgage Loan or (y)
that a Mortgage Loan has become a Rehabilitated Mortgage Loan, which notice
shall identify the applicable Mortgage Loan and, in the case of an event
specified in clause (x) of this subclause (b) above, the Servicing Transfer
Event that occurred.
(c) With respect to each Mortgage Loan that is subject to
an Environmental Insurance Policy, for as long as it is not a Specially Serviced
Mortgage Loan, if the Master Servicer has actual knowledge of any event giving
rise to a claim under an Environmental Insurance Policy, the Master Servicer or
the applicable Primary Servicer shall notify the Special Servicer to such effect
and the Master Servicer shall take reasonable actions as are in accordance with
the Servicing Standard and the terms and conditions of such Environmental
Insurance Policy to make a claim thereunder and achieve the payment of all
amounts to which the Trust is entitled thereunder. Any legal fees or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any such claim shall be paid by, and reimbursable to, the Master
Servicer or the Special Servicer as a Servicing Advance.
(d) In connection with any extension of the Maturity Date
of a Mortgage Loan, the Master Servicer shall give prompt written notice of such
extension to the insurer under the Environmental Insurance Policy and shall
execute such documents as are reasonably required by such insurer to procure an
extension of such policy (if available).
SECTION 8.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY MAINTAINED BY THE MASTER SERVICER. The Master Servicer, at its expense,
shall maintain in effect a Servicer Fidelity Bond and a Servicer Errors and
Omissions Insurance Policy. The Servicer Errors and Omissions Insurance Policy
and Servicer Fidelity Bond shall be issued by a Qualified Insurer (unless the
Master Servicer self insures as provided below) and be in form and amount
consistent with the Servicing Standard. In the event that any such Servicer
Errors and Omissions Insurance Policy or Servicer Fidelity Bond ceases to be in
effect, the Master Servicer shall obtain a comparable replacement policy or bond
from an insurer or issuer meeting the requirements set forth above as of the
date of such replacement. So long as the long-term rating of the Master Servicer
is not in any event less than "Baa1" as rated by Xxxxx'x and "BBB" as rated by
S&P, respectively, the Master Servicer may self-insure for the Servicer Fidelity
Bond and the Servicer Errors and Omissions Insurance Policy.
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SECTION 8.3 MASTER SERVICER'S GENERAL POWER AND DUTIES.
(a) The Master Servicer shall service and administer the
Mortgage Loans and shall, subject to Sections 8.7, 8.18, 8.19, 8.27 and Article
XII hereof and as otherwise provided herein and by the Code, have full power and
authority to do any and all things which it may deem necessary or desirable in
connection with such servicing and administration in accordance with the
Servicing Standard. To the extent consistent with the foregoing and subject to
any express limitations and provisions set forth in this Agreement (and, in the
case of any A/B Mortgage Loan and Loan Pair, subject to the applicable
Intercreditor Agreement or Loan Pair Intercreditor Agreement and, in the case of
the Xxxx Xxxxxxx Tower Pari Passu Loan, subject to the servicing of the Xxxx
Xxxxxxx Tower Pari Passu Loan by the LB-UBS Series 2003-C5 Master Servicer and
the LB-UBS Series 2003-C5 Special Servicer, as applicable), such power and
authority shall include, without limitation, the right, subject to the terms
hereof, (A) to execute and deliver, on behalf of the Certificateholders (and in
connection with any B Note, the holder of the B Note and, in connection with the
Loan Pair, the holder of the RSA Companion Loan) and the Trustee, customary
consents or waivers and other instruments and documents (including, without
limitation, estoppel certificates, financing statements, continuation
statements, title endorsements and reports and other documents and instruments
necessary to preserve and maintain the lien on the related Mortgaged Property
and related collateral), (B) to consent to assignments and assumptions or
substitutions, and transfers of interest of any Mortgagor, in each case subject
to and in accordance with the terms of the related Mortgage Loan and Section
8.7, (C) to collect any Insurance Proceeds, (D) subject to Section 8.7, to
consent to any subordinate financings to be secured by any related Mortgaged
Property to the extent that such consent is required pursuant to the terms of
the related Mortgage or which otherwise is required, and, subject to Section
8.7, to consent to any mezzanine debt to the extent such consent is required
pursuant to the terms of the related Mortgage; (E) to consent to the application
of any proceeds of insurance policies or condemnation awards to the restoration
of the related Mortgaged Property or otherwise and to administer and monitor the
application of such proceeds and awards in accordance with the terms of the
Mortgage Loan as the Master Servicer deems reasonable under the circumstances,
(F) to execute and deliver, on behalf of the Certificateholders (and, if
applicable, the holders of the B Note and the RSA Companion Loan) and the
Trustee, documents relating to the management, operation, maintenance, repair,
leasing and marketing of the related Mortgaged Properties, including agreements
and requests by the Mortgagor with respect to modifications of the standards of
operation and management of the Mortgaged Properties or the replacement of asset
managers, (G) to consent to any operation or action under a Mortgage Loan that
is contemplated or permitted under a Mortgage or other documents evidencing or
securing the applicable Mortgage Loan (either as a matter of right or upon
satisfaction of specified conditions), (H) to obtain, release, waive or modify
any term other than a Money Term of a Mortgage Loan and related documents
subject to and to the extent permitted by Section 8.18, (I) to exercise all
rights, powers and privileges granted or provided to the holder of the Mortgage
Notes, the RSA Companion Loan and any B Note under the terms of the Mortgage,
including all rights of consent or approval thereunder, subject to Sections 8.7
and 8.18 of this Agreement, (J) to enter into lease subordination agreements,
non-disturbance and attornment agreements or other leasing or rental
arrangements which may be requested by the Mortgagor or the Mortgagor's tenants,
(K) to join the Mortgagor in granting, modifying or releasing any easements,
covenants, conditions, restrictions, equitable servitudes, or land use or zoning
requirements with respect to the Mortgaged Properties to the extent such does
not adversely affect the value of the related Mortgage Loan or Mortgaged
Property, (L) to execute
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and deliver, on behalf of itself, the Trustee, the Trust (and, if applicable,
the holders of the B Note and the RSA Companion Loan) or any of them, any and
all instruments of satisfaction or cancellation, or of partial or full release
or discharge and all other comparable instruments, with respect to the Mortgage
Loans and with respect to the Mortgaged Properties, and (M) hold in accordance
with the terms of any Mortgage Loan and this Agreement, Defeasance Collateral.
The foregoing clauses (A) through (M) are referred to collectively as "Master
Servicer Consent Matters." Notwithstanding the above, the Master Servicer shall
have no power to (i) waive any Prepayment Premiums or (ii) consent to any
modification of a Money Term of a Mortgage Loan. Nothing contained in this
Agreement shall limit the ability of the Master Servicer to lend money to (to
the extent not secured, in whole or in part, by any Mortgaged Property), accept
deposits from and otherwise generally engage in any kind of business or dealings
with any Mortgagor as though the Master Servicer was not a party to this
Agreement or to the transactions contemplated hereby; provided, however, that
this sentence shall not modify the Servicing Standard.
(b) The Master Servicer shall not be obligated to service
and administer the Mortgage Loans which have become and continue to be Specially
Serviced Mortgage Loans, except as specifically provided herein. The Master
Servicer shall be required to make all calculations and prepare all reports
required hereunder with respect to such Specially Serviced Mortgage Loans (other
than calculations and reports expressly required to be made by the Special
Servicer hereunder) as if no Servicing Transfer Event had occurred and shall
continue to collect all Scheduled Payments, make Servicing Advances as set forth
herein, make P&I Advances as set forth herein and render such incidental
services with respect to such Specially Serviced Mortgage Loans, all as are
specifically provided for herein, but shall have no other servicing or other
duties with respect to such Specially Serviced Mortgage Loans. The Master
Servicer shall give notice within three Business Days to the Special Servicer of
any collections it receives from any Specially Serviced Mortgage Loans, subject
to changes agreed upon from time to time by the Special Servicer and the Master
Servicer. The Special Servicer shall instruct within one Business Day after
receiving such notice the Master Servicer on how to apply such funds. The Master
Servicer within one Business Day after receiving such instructions shall apply
such funds in accordance with the Special Servicer's instructions. Each Mortgage
Loan that becomes a Specially Serviced Mortgage Loan shall continue as such
until such Mortgage Loan becomes a Rehabilitated Mortgage Loan. The Master
Servicer shall not be required to initiate extraordinary collection procedures
or legal proceedings with respect to any Mortgage Loan or to undertake any
pre-foreclosure procedures.
(c) Concurrently with the execution of this Agreement, the
Trustee shall sign the Power of Attorney attached hereto as Exhibit S-1. The
Master Servicer, shall promptly notify the Trustee of the execution and delivery
of any document on behalf of the Trustee under such Power-of-Attorney. From time
to time until the termination of the Trust, upon receipt of additional
unexecuted powers of attorney from the Master Servicer or the Special Servicer,
the Trustee shall execute and return to the Master Servicer, the Special
Servicer or any Primary Servicer any additional powers of attorney and other
documents necessary or appropriate to enable the Master Servicer and the Special
Servicer to service and administer the Mortgage Loans including, without
limitation, documents relating to the management, operation, maintenance,
repair, leasing or marketing of the Mortgaged Properties. The Master Servicer
shall indemnify the Trustee for any costs, liabilities and expenses (including
attorneys' fees) incurred by the Trustee in connection with the intentional or
negligent misuse of such power of attorney by the Master Servicer.
Notwithstanding anything contained herein to the contrary,
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neither the Master Servicer nor the Special Servicer shall without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Master Servicer's or Special Servicer's,
as applicable, representative capacity, or (ii) knowingly take any action that
causes the Trustee to be registered to do business in any state, provided,
however, that the preceding clause (i) shall not apply to the initiation of
actions relating to a Mortgage Loan that the Master Servicer or the Special
Servicer, as the case may be, is servicing pursuant to its respective duties
herein (in which case the Master Servicer or the Special Servicer, as the case
may be, shall give three (3) Business Days prior notice to the Trustee of the
initiation of such action). The limitations of the preceding clause shall not be
construed to limit any duty or obligation imposed on the Trustee under any other
provision of this Agreement.
(d) The Master Servicer shall make efforts consistent with
the Servicing Standard and the terms of this Agreement to collect all payments
called for under the terms and provisions of the applicable Mortgage Loans
(other than Specially Serviced Mortgage Loans or REO Properties).
(e) The Master Servicer (or any Primary Servicer on its
behalf) shall segregate and hold all funds collected and received pursuant to
any Mortgage Loan (other than the Xxxx Xxxxxxx Tower Pari Passu Loan)
constituting Escrow Amounts separate and apart from any of its own funds and
general assets and shall establish and maintain one or more segregated custodial
accounts (each, an "Escrow Account") into which all Escrow Amounts shall be
deposited within one (1) Business Day after receipt. Each Escrow Account shall
be an Eligible Account, except with respect to Mortgage Loans identified on
Schedule VI for which Escrow Accounts shall be transferred to Eligible Accounts
at the earliest date permitted under the related Mortgage Loan documents. The
Master Servicer shall also deposit into each Escrow Account any amounts
representing losses on Eligible Investments pursuant to the immediately
succeeding paragraph and any Insurance Proceeds or Liquidation Proceeds which
are required to be applied to the restoration or repair of any Mortgaged
Property pursuant to the related Mortgage Loan. Each Escrow Account shall be
maintained in accordance with the requirements of the related Mortgage Loan and
in accordance with the Servicing Standard. Withdrawals from an Escrow Account
may be made only:
(i) to effect timely payments of items constituting
Escrow Amounts for the related Mortgage Loan;
(ii) to transfer funds to the Certificate Account (or
any sub-account thereof) to reimburse the Master Servicer for any Advance
relating to Escrow Amounts, but only from amounts received with respect to the
related Mortgage Loan which represent late collections of Escrow Amounts
thereunder;
(iii) for application to the restoration or repair of
the related Mortgaged Property in accordance with the related Mortgage Loan and
the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon
the termination of this Agreement or pay-off of the related Mortgage Loan;
(v) to pay from time to time to the related
Mortgagor any interest or investment income earned on funds deposited in the
Escrow Account if such income is required
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to be paid to the related Mortgagor under applicable law or by the terms of the
Mortgage Loan, or otherwise to the Master Servicer; and
(vi) to remove any funds deposited in a Escrow
Account that were not required to be deposited therein or to refund amounts to
the Mortgagors determined to be overages.
Subject to the immediately succeeding sentence, (i) the Master
Servicer may direct any depository institution or trust company in which the
Escrow Accounts are maintained to invest the funds held therein in one or more
Eligible Investments; provided, however, that such funds shall be either (x)
immediately available or (y) available in accordance with a schedule which will
permit the Master Servicer to meet the payment obligations for which the Escrow
Account was established; (ii) the Master Servicer shall be entitled to all
income and gain realized from any such investment of funds as additional
servicing compensation; and (iii) the Master Servicer shall deposit from its own
funds in the applicable Escrow Account the amount of any loss incurred in
respect of any such investment of funds immediately upon the realization of such
loss. The Master Servicer shall not direct the investment of funds held in any
Escrow Account and retain the income and gain realized therefrom if the terms of
the related Mortgage Loan or applicable law permit the Mortgagor to be entitled
to the income and gain realized from the investment of funds deposited therein,
and the Master Servicer shall not be required to invest amounts on deposit in
Escrow Accounts in Eligible Investments or Eligible Accounts to the extent that
the Master Servicer is required by either law or under the terms of any related
Mortgage Loan to deposit or invest (or the Mortgagor is entitled to direct the
deposit or investment of) such amounts in another type of investments or
accounts. In the event the Master Servicer is not entitled to direct the
investment of such funds, (1) the Master Servicer shall direct the depository
institution or trust company in which such Escrow Accounts are maintained to
invest the funds held therein in accordance with the Mortgagor's written
investment instructions, if the terms of the related Mortgage Loan or applicable
law require the Master Servicer to invest such funds in accordance with the
Mortgagor's directions; and (2) in the absence of appropriate written
instructions from the Mortgagor, the Master Servicer shall have no obligation
to, but may be entitled to, direct the investment of such funds; provided,
however, that in either event (i) such funds shall be either (y) immediately
available or (z) available in accordance with a schedule which will permit the
Master Servicer to meet the payment obligations for which the Escrow Account was
established, and (ii) the Master Servicer shall have no liability for any loss
in investments of such funds that are invested pursuant to written instructions
from the Mortgagor.
(f) The relationship of each of the Master Servicer and the
Special Servicer to the Trustee and the Paying Agent and to each other under
this Agreement is intended by the parties to be that of an independent
contractor and not of a joint venturer, partner or agent.
(g) With respect to each Mortgage Loan, if required by the
terms of the related Mortgage Loan, any Lock-Box Agreement or similar agreement,
the Master Servicer shall establish and maintain, in accordance with the
Servicing Standard, one or more lock-box, cash management or similar accounts
("Lock-Box Accounts") to be held outside the Trust and maintained by the Master
Servicer in accordance with the terms of the related Mortgage. No Lock-Box
Account is required to be an Eligible Account, unless otherwise required
pursuant to the related Mortgage Loan documents. The Master Servicer shall apply
the funds deposited in
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such accounts in accordance with terms of the related Mortgage Loan documents,
any Lock-Box Agreement and in accordance with the Servicing Standard.
(h) The Master Servicer or any Primary Servicer on its
behalf shall process all defeasances of Mortgage Loans in accordance with the
terms of the Mortgage Loan documents, and shall be entitled to any fees paid
relating thereto. The Master Servicer shall not permit defeasance (or partial
defeasance if permitted under the Mortgage Loan) of any Mortgage Loan on or
before the second anniversary of the Closing Date unless such defeasance will
not result in an Adverse REMIC Event and the Master Servicer has received an
opinion of counsel to such effect and all items in the following sentence have
been satisfied. Subsequent to the second anniversary of the Closing Date, the
Master Servicer, in connection with the defeasance of a Mortgage Loan shall
require (to the extent it is not inconsistent with the Servicing Standard) that:
(i) the defeasance collateral consists of U.S. Treasury obligations, (ii) the
Master Servicer has determined that the defeasance will not result in an Adverse
REMIC Event, (iii) either (A) the related Mortgagor designates a Single-Purpose
Entity (if the Mortgagor no longer complies) to own the Defeasance Collateral
(subject to customary qualifications) or (B) the Master Servicer has established
a Single-Purpose Entity to hold all Defeasance Collateral relating to the
Defeasance Loans, (iv) the Master Servicer has requested and received from the
Mortgagor (A) an opinion of counsel that the Trustee will have a perfected,
first priority security interest in such Defeasance Collateral and (B) written
confirmation from a firm of independent accountants stating that payments made
on such Defeasance Collateral in accordance with the terms thereof will be
sufficient to pay the subject Mortgage Loan (or the defeased portion thereof in
connection with a partial defeasance) in full on or before its Maturity Date
(or, in the case of the ARD Loan, on or before its Anticipated Repayment Date)
and to timely pay each subsequent Scheduled Payment, (v) (A) a Rating Agency
Confirmation is received if the Mortgage Loan (together with any other Mortgage
Loan with which it is cross-collateralized) has a Principal Balance greater than
the lesser of $20,000,000 and 5% of the Aggregate Certificate Balance (or such
higher threshold as shall be published by S&P), unless such Rating Agency has
waived in writing such Rating Agency Confirmation requirement or (B) if the
Mortgage Loan is less than or equal to both of the amounts set forth in clause
(A), either a Notice and Certification in the form attached hereto as Exhibit Z
(or such less restrictive form as shall be adopted by S&P) or a Rating Agency
Confirmation is received from S&P and (vi) a Rating Agency Confirmation is
received if the Mortgage Loan is one of the ten largest Mortgage Loans, by
Principal Balance. Any customary and reasonable out-of-pocket expense incurred
by the Master Servicer pursuant to this Section 8.3(h) shall be paid by the
Mortgagor of the Defeasance Loan pursuant to the related Mortgage, Mortgage Note
or other pertinent document, if so allowed by the terms of such documents.
The parties hereto acknowledge that if the payments described
in paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding
the obligation of a Mortgagor to pay the reasonable costs and expenses
associated with a defeasance of the related Mortgage Loan are insufficient to
reimburse the Trust, including, but not limited to, rating agency fees, then the
sole obligation of the related Seller shall be to pay an amount equal to such
insufficiency or expense to the extent the related Mortgagor is not required to
pay such amount. Promptly upon receipt of notice of such insufficiency or unpaid
expense, the Master Servicer shall request the related Seller to make such
payment by deposit to the Certificate Account.
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In the case of a Specially Serviced Mortgage Loan, the Master
Servicer shall process any defeasance of such Specially Serviced Mortgage Loan
in accordance with the original terms of the respective Mortgage Loan documents
following a request by the Special Servicer that the Master Servicer do so,
which request shall be accompanied by a waiver of any condition of defeasance
that an "event of default" under such Specially Serviced Mortgage Loan not have
occurred or be continuing, and the Master Servicer shall be entitled to any fees
paid relating to such defeasance. If such "event of default" is on account of an
uncured payment default, the Special Servicer will process the defeasance of
such Specially Serviced Mortgage Loan, and the Special Servicer shall be
entitled to any fees paid relating to such defeasance.
(i) The Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Mortgagor under a ground lease,
confirm whether or not on or prior to the date that is thirty (30) days after
the Closing Date, the Mortgage Loan Seller has notified the related ground
lessor of the transfer of such Mortgage Loan to the Trust pursuant to this
Agreement and informed such ground lessor that any notices of default under the
related Ground Lease should thereafter be forwarded to the Master Servicer (as
evidenced by delivery of a copy thereof to the Master Servicer). The Master
Servicer shall promptly notify the ground lessor if the Mortgage Loan Seller has
failed to do so by the thirtieth day after the Closing Date.
(j) Pursuant to the related Intercreditor Agreement, the
owner of any B Note has agreed that the Master Servicer and the Special Servicer
are authorized and obligated to service and administer the B Note pursuant to
this Agreement. The Master Servicer shall be entitled, during any period when
the A Note and B Note under any A/B Mortgage Loan do not constitute Specially
Serviced Mortgage Loans, to exercise the rights and powers granted under the
related Intercreditor Agreement to the "Note A Holder" and/or the "Servicer"
referred to therein. For the avoidance of doubt, the parties acknowledge that
neither the Master Servicer nor the Special Servicer shall be entitled or
required to exercise the rights and powers granted to any "Note B Holder" as
defined under the related Intercreditor Agreement.
(k) Pursuant to the Xxxx Xxxxxxx Tower Intercreditor
Agreement, the owner of the Xxxx Xxxxxxx Tower Pari Passu Loan has agreed that
such owner's rights in, to and under the Xxxx Xxxxxxx Tower Pari Passu Loan are
subject to the servicing and all other rights of the LB-UBS Series 2003-C5
Master Servicer and the LB-UBS Series 2003-C5 Special Servicer, and the LB-UBS
Series 2003-C5 Master Servicer and the LB-UBS Series 2003-C5 Special Servicer
are authorized and obligated to service and administer the Xxxx Xxxxxxx Tower
Pari Passu Loan pursuant to the LB-UBS Series 2003-C5 Pooling and Servicing
Agreement. Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's obligations and
responsibilities hereunder and the Master Servicer's authority with respect to
the Xxxx Xxxxxxx Tower Pari Passu Loan are limited by and subject to the terms
of the Xxxx Xxxxxxx Tower Intercreditor Agreement and the rights of the LB-UBS
Series 2003-C5 Master Servicer and the LB-UBS Series 2003-C5 Special Servicer
with respect thereto under the LB-UBS Series 2003-C5 Pooling and Servicing
Agreement. The Master Servicer shall use reasonable best efforts consistent with
the Servicing Standard to monitor the servicing of the Xxxx Xxxxxxx Tower Pari
Passu Loan by the LB-UBS Series 2003-C5 Master Servicer and the LB-UBS Series
2003-C5 Special Servicer pursuant to the LB-UBS Series 2003-C5 Pooling and
Servicing Agreement and shall enforce the rights of the Trustee (as holder of
the Xxxx Xxxxxxx Tower Pari Passu Loan) under the LB-UBS Series 2003-C5 Pooling
and Servicing Agreement and the Xxxx Xxxxxxx Tower Intercreditor Agreement. The
Master Servicer shall take such
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actions as it shall deem reasonably necessary to facilitate the servicing of the
Xxxx Xxxxxxx Tower Pari Passu Loan by the LB-UBS Series 2003-C5 Master Servicer
and the LB-UBS Series 2003-C5 Special Servicer including, but not limited to,
delivering appropriate Requests for Release to the Trustee and Custodian (if
any) in order to deliver any portion of the related Mortgage File to the LB-UBS
Series 2003-C5 Master Servicer or LB-UBS Series 2003-C5 Special Servicer under
the LB-UBS Series 2003-C5 Pooling and Servicing Agreement.
(l) Pursuant to the Loan Pair Intercreditor Agreement, the
owner of the RSA Companion Loan has agreed that the Master Servicer and the
Special Servicer are authorized and obligated to service and administer the RSA
Companion Loan pursuant to this Agreement. The Master Servicer, the Special
Servicer, the Trustee and the Fiscal Agent are authorized and directed to
execute and deliver to the holder of the RSA Companion Loan a letter agreement
dated as of the Closing Date setting forth provisions as to, among other things,
the timing of remittances, advances and reports relating to the RSA Companion
Loan, and references herein to the Loan Pair Intercreditor Agreement shall be
construed to refer to such Loan Pair Intercreditor Agreement and such letter
agreement taken together. To the extent that the Master Servicer, the Special
Servicer, the Trustee and/or the Fiscal Agent have duties and obligations under
any such letter agreement, each successor master servicer, successor special
servicer, successor trustee and/or successor fiscal agent, respectively, under
this Agreement shall perform such duties and satisfy such obligations.
SECTION 8.4 PRIMARY SERVICING AND SUB-SERVICING.
(a) The parties hereto (A) acknowledge that the Master
Servicer has delegated certain of its obligations and assigned certain of its
rights under this Agreement to the Primary Servicer pursuant to the applicable
Primary Servicing Agreement; and (B) agree: (1) in addition to those obligations
specifically delegated by the Master Servicer to the Primary Servicer under the
applicable Primary Servicing Agreement, the Primary Servicer shall also perform
the Master Servicer's obligations set forth in Section 2.1(d) of this Agreement
as such Section relates to the Mortgage Loans serviced by it; (2) in addition to
those rights specifically granted by the Master Servicer to the Primary Servicer
under the applicable Primary Servicing Agreement, those rights set forth in
Section 8.24 hereof accruing to the benefit of the Master Servicer shall also
accrue to the benefit of the Primary Servicer; (3) any indemnification or
release from liability set forth in this Agreement accruing to the benefit of
the Master Servicer shall also, to the extent applicable, benefit the Primary
Servicer; and (4) for each notice, certification, report, schedule, statement or
other type of writing that a party hereto is obligated to deliver to the Master
Servicer, such party shall deliver to the Primary Servicer a copy of such
notice, certification, report, schedule, statement or other type of writing at
the time and in the same manner that any of the foregoing is required to be
delivered to the Master Servicer. Notwithstanding the provisions of any Primary
Servicing Agreement or any other provisions of this Agreement, the Master
Servicer shall remain obligated and liable to the Trustee, the Paying Agent, the
Special Servicer, the Certificateholders, the holder of the RSA Companion Loan
and the holder of any B Note for servicing and administering of the Mortgage
Loans and the RSA Companion Loan in accordance with the provisions of this
Agreement to the same extent as if the Master Servicer was alone servicing and
administering the Mortgage Loans and the RSA Companion Loan. The Master Servicer
or applicable Primary Servicer shall supervise, administer, monitor, enforce and
oversee the servicing of the applicable Mortgage Loans by any Sub-Servicer
appointed by it. The terms of any arrangement or agreement between the Master
Servicer or applicable Primary Servicer and a
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Sub-Servicer shall provide that such agreement or arrangement may be terminated,
without cause and without the payment of any termination fees, by the Trustee in
the event such Master Servicer or applicable Primary Servicer is terminated in
accordance with this Agreement or the applicable Primary Servicing Agreement. In
addition, none of the Trustee, the Paying Agent, the Certificateholders, the
holder of the RSA Companion Loan or the holder of any B Note shall have any
direct obligation or liability (including, without limitation, indemnification
obligations) with respect to any Sub-Servicer. The Master Servicer or applicable
Primary Servicer shall pay the costs of enforcement against any of its
Sub-Servicers at its own expense, but shall be reimbursed therefor only (i) from
a general recovery resulting from such enforcement only to the extent that such
recovery exceeds all amounts due in respect of the related Mortgage Loans or
(ii) from a specific recovery of costs, expenses or attorneys fees against the
party against whom such enforcement is directed. Notwithstanding the provisions
of any primary servicing agreement or sub-servicing agreement, any of the
provisions of this Agreement relating to agreements or arrangements between the
Master Servicer or applicable Primary Servicer or a Sub-Servicer, or reference
to actions taken through a Sub-Servicer or otherwise, the Master Servicer or
applicable Primary Servicer shall remain obligated and liable to the Trustee,
the Paying Agent, the Special Servicer and the Certificateholders for the
servicing and administering of the applicable Mortgage Loans and the RSA
Companion Loan in accordance with (and subject to the limitations contained
within) the provisions of this Agreement or the applicable Primary Servicing
Agreement without diminution of such obligation or liability by virtue of
indemnification from a Sub-Servicer and to the same extent and under the same
terms and conditions as if the Master Servicer or applicable Primary Servicer
alone were servicing and administering the Mortgage Loans.
(b) Subject to the limitations of subsection (a), the
Master Servicer and the Primary Servicer may appoint one or more sub-servicers
(each, a "Sub-Servicer") to perform all or any portion of its duties hereunder
for the benefit of the Trustee and the Certificateholders, provided, however,
that any decision or recommendation involving the exercise of a Primary
Servicer's discretion as a "lender" under any loan document with respect to a
Mortgage Loan shall be exercised only by the Primary Servicer and may not be
delegated to a Sub-Servicer.
The Master Servicer shall enter into the Primary Servicing
Agreement with the Primary Servicer and shall not terminate such agreements
except in accordance with the terms thereof. To the extent consistent with the
rights of the Primary Servicer under this Agreement and the related Primary
Servicing Agreement, but not in limitation of any other rights granted to the
Primary Servicer in this Agreement and/or in the Primary Servicing Agreement,
the Primary Servicer shall have all of the rights and obligations of a
Sub-Servicer set forth herein.
Notwithstanding any other provision set forth in this
Agreement to the contrary, (i) the Primary Servicer's rights and obligations
under its Primary Servicing Agreement shall expressly survive a termination of
the Master Servicer's servicing rights under this Agreement; provided that the
applicable Primary Servicing Agreement has not been terminated in accordance
with its provisions; (ii) any successor Master Servicer, including, without
limitation, the Trustee (if it assumes the servicing obligations of the Master
Servicer) shall be deemed to automatically assume and agree to the then current
Primary Servicing Agreement without further action upon becoming the successor
Master Servicer and (iii) this Agreement may not be modified in any manner which
would increase the obligations or limit the rights of a Primary Servicer
hereunder
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and/or under the applicable Primary Servicing Agreement, without the prior
written consent of such Primary Servicer (which consent shall not be
unreasonably withheld).
If a task, right or obligation of Master Servicer is delegated
to a Primary Servicer under a Primary Servicing Agreement, and such task, right
or obligation involves or requires the consent of the Special Servicer, then the
Special Servicer shall accept the performance of such task, right or obligation
by such Primary Servicer in accordance with the terms of this Agreement
(including without limitation any time periods for consent or deemed consent to
be observed by the Special Servicer) as if Master Servicer were performing it.
Notwithstanding any provision of this Agreement, each of the
parties hereto acknowledges and agrees that the Special Servicer is neither a
party to any Primary Servicing Agreement, nor is it bound by any provision of
any Primary Servicing Agreement. The Special Servicer hereby acknowledges the
delegation of rights and duties hereunder by the Master Servicer pursuant to the
provisions of any Primary Servicing Agreement.
SECTION 8.5 SERVICERS MAY OWN CERTIFICATES. The Master
Servicer and any Primary Servicer and any agent of the Master Servicer or
Primary Servicer in its individual or any other capacity may become the owner or
pledgee of Certificates with the same rights it would have if it were not the
Master Servicer or such agent. Any such interest of the Master Servicer or any
Primary Servicer or such agent in the Certificates shall not be taken into
account when evaluating whether actions of the Master Servicer are consistent
with its obligations in accordance with the Servicing Standard regardless of
whether such actions may have the effect of benefiting the Class or Classes of
Certificates owned by the Master Servicer.
SECTION 8.6 MAINTENANCE OF HAZARD INSURANCE, OTHER
INSURANCE, TAXES AND OTHER. Subject to the limitations set forth below, the
Master Servicer shall use reasonable efforts consistent with the Servicing
Standard to cause the related Mortgagor to maintain for each Mortgage Loan
(other than any REO Mortgage Loan) (A) a Standard Hazard Insurance Policy (that,
if the terms of the related Mortgage Loan documents and the related Mortgage so
require, contains no exclusion for damages due to any Act or Acts of Terrorism,
as defined in the Terrorism Risk Insurance Act of 2002) and which does not
provide for reduction due to depreciation in an amount that is at least equal to
the lesser of (i) the full replacement cost of improvements securing such
Mortgage Loan or (ii) the outstanding Principal Balance of such Mortgage Loan,
any related B Note or the RSA Companion Loan, but, in any event, in an amount
sufficient to avoid the application of any co-insurance clause and (B) any other
insurance coverage for a Mortgage Loan which the related Mortgagor is required
to maintain under the related Mortgage, provided the Master Servicer shall not
be required to maintain earthquake insurance on any Mortgaged Property unless
such insurance was required at origination and is available at commercially
reasonable rates; provided, however, that the Special Servicer shall have the
right, but not the duty, to obtain, at the Trust's expense, earthquake insurance
on any Mortgaged Property securing a Specially Serviced Mortgage Loan or an REO
Property so long as such insurance is available at commercially reasonable
rates. If the related Mortgagor does not maintain the insurance set forth in
clauses (A) and (B) above, then the Master Servicer shall cause to be maintained
such insurance with a Qualified Insurer. The Master Servicer shall be deemed to
have satisfied its Servicing Standard if the Mortgagor maintains, or the Master
Servicer shall have otherwise caused to be obtained, a Standard Hazard Insurance
Policy that is
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in compliance with the related Mortgage Loan documents, and, if required by such
Mortgage Loan documents, the Mortgagor pays, or the Master Servicer shall have
otherwise caused to be paid, the premium required by the related insurance
provider that is necessary to avoid an exclusion in such policy against "acts of
terrorism" as defined by the Terrorism Risk Insurance Act of 2002.
Each Standard Hazard Insurance Policy maintained with respect
to any Mortgaged Property that is not an REO Property shall contain, or have an
accompanying endorsement that contains, a standard mortgagee clause. If the
improvements on the Mortgaged Property are located in a designated special flood
hazard area by the Federal Emergency Management Agency in the Federal Register,
as amended from time to time (to the extent permitted under the related Mortgage
Loan or as required by law), the Master Servicer (with respect to any Mortgaged
Property that is not an REO Property) shall cause flood insurance to be
maintained. Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid principal balance of the related Mortgage Loan or (ii) the
maximum amount of such insurance available for the related Mortgaged Property
under the national flood insurance program, if the area in which the
improvements on the Mortgaged Property are located is participating in such
program. Any amounts collected by the Master Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or property thus acquired or amounts released to the
Mortgagor in accordance with the terms of the applicable Mortgage Loan) shall be
deposited in the Certificate Account.
Any cost (such as insurance premiums and insurance broker fees
but not internal costs and expenses of obtaining such insurance) incurred by the
Master Servicer in maintaining any insurance pursuant to this Section 8.6 shall
not, for the purpose of calculating monthly distributions to the
Certificateholders or remittances to the Paying Agent for their benefit, be
added to the Principal Balance of the Mortgage Loan, notwithstanding that the
terms of the Mortgage Loan permit such cost to be added to the outstanding
Principal Balance thereof. Such costs shall be paid as a Servicing Advance by
the Master Servicer, subject to Section 4.4 hereof.
Notwithstanding the above, the Master Servicer shall have no
obligation beyond using its reasonable efforts consistent with the Servicing
Standard to enforce such insurance requirements. Furthermore, the Master
Servicer shall not be required in any event to cause the Mortgagor to maintain
or itself obtain insurance coverage beyond what is available on commercially
reasonable terms at a cost customarily acceptable (in each case, as determined
by the Master Servicer, which shall be entitled to rely, at its sole expense, on
insurance consultants in making such determination, consistent with the
Servicing Standard) and consistent with the Servicing Standard; provided, that
the Master Servicer shall be obligated to cause the Mortgagor to maintain or
itself obtain insurance against property damage resulting from terrorism or
similar acts if the terms of the related Mortgage Loan documents and the related
Mortgage so require unless the Master Servicer determines that (i) such
insurance is not available at any rate or (ii) such insurance is not available
at commercially reasonable rates and such hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located; provided, that such determination must be made by the Master Servicer
not less frequently (but need not be made more frequently) than annually, but in
any event, shall be made on the approximate date on (but not later than sixty
(60) days thereafter) which the Master Servicer receives notice of the renewal,
replacement or cancellation of coverage (as evidenced by the related insurance
policy or
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insurance certificate). Notwithstanding the limitation set forth in the
preceding sentence, if the related Mortgage Loan documents and the related
Mortgage require the Mortgagor to maintain insurance against property damage
resulting from terrorism or similar acts, the Master Servicer shall prior to
availing itself of any limitation described in that sentence with respect to any
Mortgage Loan (or any component loan of an A/B Mortgage Loan) that has a
principal balance in excess of $2,500,000, obtain the approval or disapproval of
the Special Servicer and the Operating Adviser (subject to the last paragraph of
Section 9.39). The Master Servicer shall be entitled to rely on the
determination of the Special Servicer made in connection with such approval or
disapproval. The Special Servicer shall decide whether to withhold or grant such
approval in accordance with the Servicing Standard. If any such approval has not
been expressly denied within seven (7) Business Days of receipt by the Special
Servicer and Operating Adviser from the Master Servicer of the Master Servicer's
determination and analysis and all information reasonably requested by the
Special Servicer and reasonably available to the Master Servicer in order to
make an informed decision, such approval shall be deemed to have been granted.
The Master Servicer shall conclusively be deemed to have
satisfied its obligations as set forth in this Section 8.6 either (i) if the
Master Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, the RSA Companion Loan and the applicable B Notes serviced by
it, it being understood and agreed that such policy may contain a deductible
clause on terms substantially equivalent to those commercially available and
maintained by comparable servicers consistent with the Servicing Standard, and
provided that such policy is issued by a Qualified Insurer or (ii) if the Master
Servicer, provided that its long-term rating is not less than "A2" by Xxxxx'x
and "A-" by S&P, self-insures for its obligations as set forth in the first
paragraph of this Section 8.6. In the event that the Master Servicer shall cause
any Mortgage Loan to be covered by such a master force placed or blanket
insurance policy, the incremental cost of such insurance allocable to such
Mortgage Loan (i.e., other than any minimum or standby premium payable for such
policy whether or not any Mortgage Loan is then covered thereby), if not borne
by the related Mortgagor, shall be paid by the Master Servicer as a Servicing
Advance. If such policy contains a deductible clause, the Master Servicer shall,
if there shall not have been maintained on the related Mortgaged Property a
policy complying with this Section 8.6 and there shall have been a loss that
would have been covered by such policy, deposit in the Certificate Account the
amount not otherwise payable under such master force placed or blanket insurance
policy because of such deductible clause to the extent that such deductible
exceeds (i) the deductible under the related Mortgage Loan or (ii) if there is
no deductible limitation required under the Mortgage Loan, the deductible amount
with respect to insurance policies generally available on properties similar to
the related Mortgaged Property which is consistent with the Servicing Standard,
and deliver to the Trustee an Officer's Certificate describing the calculation
of such amount. In connection with its activities as administrator and servicer
of the Mortgage Loans, the RSA Companion Loan and any B Note, the Master
Servicer agrees to present, on its behalf and on behalf of the Trustee and the
holders of the RSA Companion Loan or any B Note, claims under any such master
force placed or blanket insurance policy.
With respect to each Mortgage Loan, the Master Servicer shall
maintain accurate records with respect to each related Mortgaged Property
reflecting the status of taxes, assessments and other similar items that are or
may become a lien on the related Mortgaged Property and the status of insurance
premiums payable with respect thereto. From time to time, the Master Servicer
(other than with respect to REO Mortgage Loans) shall (i) obtain all bills for
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the payment of such items (including renewal premiums), and (ii) except in the
case of Mortgage Loans under which Escrow Amounts are not held by the Master
Servicer, effect payment of all such bills, taxes and other assessments with
respect to such Mortgaged Properties prior to the applicable penalty or
termination date, in each case employing for such purpose Escrow Amounts as
allowed under the terms of the related Mortgage Loan. If a Mortgagor fails to
make any such payment on a timely basis or collections from the Mortgagor are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer in accordance with the Servicing Standard shall use
its reasonable efforts to pay as a Servicing Advance the amount necessary to
effect the payment of any such item prior to such penalty or termination date,
subject to Section 4.4 hereof. No costs incurred by the Master Servicer, the
Trustee or the Fiscal Agent as the case may be, in effecting the payment of
taxes and assessments on the Mortgaged Properties and related insurance premiums
and ground rents shall, for the purpose of calculating distributions to
Certificateholders, be added to the Principal Balance of the Mortgage Loans,
notwithstanding that the terms of such Mortgage Loans permit such costs to be
added to the outstanding Principal Balances of such Mortgage Loans.
SECTION 8.7 ENFORCEMENT OF DUE-ON-SALE CLAUSES; ASSUMPTION
AGREEMENTS; DUE-ON-ENCUMBRANCE CLAUSE.
(a) In the event the Master Servicer receives a request
from a Mortgagor (or other obligor) pursuant to the provisions of any Mortgage
Loan, the RSA Companion Loan or any B Note (other than a Specially Serviced
Mortgage Loan) that expressly permits, subject to any conditions set forth in
the Mortgage Loan documents, the assignment of the related Mortgaged Property
to, and assumption of such Mortgage Loan, RSA Companion Loan or B Note by,
another Person, the Master Servicer shall obtain relevant information for
purposes of evaluating such request. For the purpose of the foregoing sentence,
the term `expressly permits' shall include outright permission to assign,
permission to assign upon satisfaction of certain conditions or prohibition
against assignment except upon the satisfaction of stated conditions. If the
Master Servicer recommends to approve such assignment, the Master Servicer shall
provide to the Special Servicer (and solely with respect to any A/B Mortgage
Loan, the holder of the B Note) a copy of such recommendation and the materials
upon which such recommendation is based (which information shall consist of the
information to be included in the Assignment and Assumption Submission to
Special Servicer, in the form attached hereto as Exhibit U) and (A) the Special
Servicer shall have the right hereunder to grant or withhold consent to any such
request for such assignment and assumption in accordance with the terms of the
Mortgage Loan, the RSA Companion Loan or a B Note and this Agreement, and the
Special Servicer shall not unreasonably withhold such consent and any such
decision of the Special Servicer shall be in accordance with the Servicing
Standard, (B) failure of the Special Servicer to notify the Master Servicer in
writing, within five (5) Business Days (or within ten (10) Business Days to the
extent permitted in Section 9.40 of this Agreement) following the Master
Servicer's delivery of the recommendation described above and the complete
Assignment and Assumption Submission to Special Servicer on which the
recommendation is based, of its determination to grant or withhold such consent
shall be deemed to constitute a grant of such consent and (C) the Master
Servicer shall not permit any such assignment or assumption unless (i) it has
received the written consent of the Special Servicer or such consent has been
deemed to have been granted as described in the preceding sentence and (ii) with
respect to any A/B Mortgage Loan, the Master Servicer has obtained the approval
of the holder of the related B Note, to the extent required by, and in
accordance with the procedures set forth in, Section 9.40. The Special Servicer
hereby
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acknowledges the delegation of rights and duties hereunder by the Master
Servicer pursuant to the provisions of the Primary Servicing Agreement. If the
Special Servicer withholds consent pursuant to the provisions of this Agreement,
it shall provide the Master Servicer or any applicable Primary Servicer with a
written statement and a verbal explanation as to its reasoning and analysis.
Upon consent or deemed consent by the Special Servicer to such proposed
assignment and assumption, the Master Servicer shall process such request of the
related Mortgagor (or other obligor) and shall be authorized to enter into an
assignment and assumption or substitution agreement with the Person to whom the
related Mortgaged Property has been or is proposed to be conveyed, and/or
release the original Mortgagor, the RSA Companion Loan or a B Note from
liability under the related Mortgage Loan, the RSA Companion Loan or a B Note
and substitute as obligor thereunder the Person to whom the related Mortgaged
Property has been or is proposed to be conveyed; provided, however, that the
Master Servicer shall not enter into any such agreement to the extent that any
terms thereof would result in an Adverse REMIC Event or create any lien on a
Mortgaged Property that is senior to, or on parity with, the lien of the related
Mortgage. To the extent permitted by applicable law, the Master Servicer shall
not enter into such an assumption or substitution agreement unless the credit
status of the prospective new Mortgagor (or other obligor) is in conformity to
the terms of the related Mortgage Loan, B Note or the RSA Companion Loan
documents. In making its recommendation, the Master Servicer shall evaluate such
conformity in accordance with the Servicing Standard. The Master Servicer shall
notify the Trustee, the Paying Agent and the Special Servicer of any assignment
and assumption or substitution agreement executed pursuant to this Section
8.7(a). The Master Servicer shall be entitled to (as additional servicing
compensation) 50% of any assumption fee collected from a Mortgagor in connection
with an assignment and assumption or substitution of a non-Specially Serviced
Mortgage Loan executed pursuant to this Section 8.7(a) and the Special Servicer
shall be entitled to (as additional special servicing compensation) the other
50% of such fee.
Notwithstanding the foregoing, the Special Servicer
acknowledges that the Master Servicer has delegated certain tasks, rights and
obligations to the Primary Servicer with respect to Post Closing Requests (as
defined in the Primary Servicing Agreement) pursuant to Section 8.4 of this
Agreement. The Primary Servicing Agreement classifies certain Post Closing
Requests as Category 1 Requests (as defined in the Primary Servicing Agreement),
in which the Primary Servicer has certain authority to evaluate and process such
requests in accordance with this Agreement, the applicable Primary Servicing
Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a
condition, term or provision that requires, or specifies a standard of, consent
or approval of the applicable Mortgagee under the Mortgage Loan documents, the
Primary Servicing Agreement provides for the Master Servicer's determination of
materiality of such condition, term or provision requiring approval or consent
and the referral of such condition, term or provision to a Special Servicer for
consent in accordance with the terms of the Primary Servicing Agreement upon a
determination of materiality. The Special Servicer acknowledges such provisions.
Nothing in this Agreement, however, shall grant the Primary Servicer greater
authority, discretion or delegated rights over Post Closing Requests than are
set forth in the Primary Servicing Agreement.
Neither the Master Servicer nor the Special Servicer shall
have any liability, and shall be indemnified by the Trust for any liability to
the Mortgagor or the proposed assignee, for
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any delay in responding to requests for assumption, if the same shall occur as a
result of the failure of the Rating Agencies, or any of them, to respond to such
request in a reasonable period of time.
(b) Other than with respect to the assignment and
assumptions referred to in subsection (a) above, if any Mortgage Loan that is
not a Specially Serviced Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms (i) provides that such Mortgage Loan
shall (or may at the mortgagee's option) become due and payable upon the sale or
other transfer of an interest in the related Mortgaged Property or ownership
interest in the related Mortgagor, or (ii) provides that such Mortgage Loan may
not be assumed, or ownership interests in the related Mortgagor may not be
transferred, without the consent of the related mortgagee in connection with any
such sale or other transfer, then, the Master Servicer shall review and make a
determination to either (i) enforce such due-on-sale clause or (ii) if in the
best economic interest of the Trust, waive the effect of such provision, such
waiver to be processed in the same manner as in Section 8.7(a); provided,
however, that if the Principal Balance of such Mortgage Loan (together with any
other Mortgage Loan with which it is cross-collateralized) at such time equals
or exceeds 5% of the Aggregate Certificate Balance or exceeds $35,000,000 or is
one of the then current top 10 loans (by Principal Balance) in the pool, then
prior to waiving the effect of such provision, the Master Servicer shall obtain
Rating Agency Confirmation (including with respect to any securities which are
rated by a Rating Agency evidencing direct beneficial interests in the A Notes
and any B Note) regarding such waiver. In connection with the request for such
consent, the Master Servicer shall prepare and deliver to Xxxxx'x and S&P a
memorandum outlining its analysis and recommendation in accordance with the
Servicing Standard, together with copies of all relevant documentation. The
Master Servicer shall promptly forward copies of the assignment and assumption
documents relating to any Mortgage Loan to the Special Servicer, the Paying
Agent and the Trustee, and the Master Servicer shall promptly thereafter forward
such documents to the Rating Agencies. The Special Servicer and the Master
Servicer shall each be entitled to (as additional compensation) 50% of any fee
collected from a Mortgagor in connection with the granting or withholding such
consent (other than any such fee payable in connection with the Xxxx Xxxxxxx
Tower Pari Passu Loan).
(c) The Master Servicer shall have the right to consent to
any transfers of an interest of a Mortgagor, to the extent such transfer is to a
party or entity specifically named or described under the terms of the related
Mortgage Loan, including any consent to transfer to any subsidiary or affiliate
of Mortgagor or to a person acquiring less than a majority interest in the
Mortgagor; provided, however, that if (i) the Principal Balance of such Mortgage
Loan (together with any other Mortgage Loan with which it is
cross-collateralized) at such time equals or exceeds 5% of the Aggregate
Certificate Balance or is one of the then current top 10 loans (by Principal
Balance) in the pool, and (ii) the transfer is of an interest in the Mortgagor
greater than 49%, then prior to consenting, the Master Servicer shall obtain a
Rating Agency Confirmation regarding such consent, the costs of which to be
payable by the related Mortgagor to the extent provided for in the Mortgage Loan
documents. The Master Servicer shall be entitled to collect and receive from
Mortgagors any customary fees in connection with such transfers of interest as
additional servicing compensation.
(d) The Trustee for the benefit of the Certificateholders,
the holder of the RSA Companion Loan and the holder of any B Note shall execute
any necessary instruments in the form presented to it by the Master Servicer
(pursuant to subsection (a)) or the Special Servicer
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(pursuant to subsection (b)) for such assignments and assumptions agreements.
Upon the closing of the transactions contemplated by such documents, the Master
Servicer or the Special Servicer, as the case may be, shall cause the originals
of the assignment and assumption agreement, the release (if any), or the
modification or supplement to the Mortgage Loan to be delivered to the Trustee
except to the extent such documents have been submitted to the recording office,
in which event the Master Servicer shall promptly deliver copies of such
documents to the Trustee and the Special Servicer.
(e) If any Mortgage Loan (other than a Specially Serviced
Mortgage Loan) which contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may
at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged
Property or a lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the Mortgagee to the
creation of any such additional lien or other encumbrance on the
related Mortgaged Property or a lien on an ownership interest in the
Mortgagor,
then, as long as such Mortgage Loan is included in the Trust, the Master
Servicer, on behalf of the Trustee as the Mortgagee of record, shall exercise
(or, subject to Section 8.18, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard, the following
paragraph and Section 8.18 hereof. The Master Servicer shall not waive the
effect of such provision without first obtaining Rating Agency Confirmation
(including with respect to any securities which are rated by a Rating Agency
evidencing direct beneficial interests in the A Notes and any B Note) regarding
such waiver and complying with the provisions of the next succeeding paragraph;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance and (y) such Mortgage Loan has
a Loan-to-Value Ratio (which includes Junior Indebtedness, if any) that is
greater than or equal to 85% and a Debt Service Coverage Ratio (which includes
debt service on Junior Indebtedness, if any) that is less than 1.2x.
Without limiting the generality of the preceding paragraph, in
the event that the Master Servicer receives a request for a waiver of any
"due-on-encumbrance" clause, the Master Servicer shall obtain relevant
information for purposes of evaluating such request for a waiver. If the Master
Servicer recommends to waive such clause, the Master Servicer shall provide to
the Special Servicer a copy of such recommendation and the materials upon which
such recommendation is based (which information shall consist of the information
to be included in the Additional Lien, Monetary Encumbrance and Mezzanine
Financing Submission Package to the Special Servicer, in the form attached
hereto as Exhibit V) and (A) the Special Servicer shall have the right hereunder
to grant or withhold consent to any such request in accordance with the terms of
the Mortgage Loan and this Agreement, and the Special Servicer shall not
unreasonably withhold such consent and any such decision of the Special Servicer
shall be in accordance with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer in writing, within five (5) Business Days
following the Master Servicer's delivery of the
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recommendation described above and the complete Additional Lien, Monetary
Encumbrance and Mezzanine Financing Submission Package to the Special Servicer
on which the recommendation is based, of its determination to grant or withhold
such consent shall be deemed to constitute a grant of such consent and (C) the
Master Servicer shall not permit any such waiver unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described in the preceding sentence. If the Special Servicer
withholds consent pursuant to the foregoing provisions, it shall provide the
Master Servicer with a written statement and a verbal explanation as to its
reasoning and analysis. Upon consent or deemed consent by the Special Servicer
to such proposed waiver, the Master Servicer shall process such request of the
related Mortgagor subject to the other requirements set forth above.
The parties hereto acknowledge that, if the payments described
in paragraph 39 of Exhibit 2 to the Mortgage Loan Purchase Agreements regarding
the obligation of a Mortgagor to pay the reasonable costs and expenses of
obtaining any Rating Agency Confirmation in connection with an assumption of the
related Mortgage Loan are insufficient to reimburse the Trust, then it shall be
the sole obligation of the related Seller to pay an amount equal to such
insufficiency to the extent the related Mortgagor is not required to pay them.
Promptly upon receipt of notice of such insufficiency, the Master Servicer or
the Special Servicer, as applicable, shall request the related Seller to make
such payment by deposit to the Certificate Account. The Master Servicer may not
waive such payment by the Mortgagor and shall use its reasonable efforts to
collect such amounts from the Mortgagor to the extent the related mortgage loan
documents require the related Mortgagor to pay such amounts.
SECTION 8.8 TRUSTEE TO COOPERATE; RELEASE OF TRUSTEE
MORTGAGE FILES. Upon the payment in full of any Mortgage Loan, the complete
defeasance of a Mortgage Loan, satisfaction or discharge in full of any
Specially Serviced Mortgage Loan, the purchase of an A Note by the holder of a B
Note pursuant to the related Intercreditor Agreement, or the receipt by the
Master Servicer of a notification that payment in full (or such payment, if any,
in connection with the satisfaction and discharge in full of any Specially
Serviced Mortgage Loan) will be escrowed in a manner customary for such
purposes, and upon notification by the Master Servicer in the form of a
certification (which certification shall include a statement to the effect that
all amounts received or to be received in connection with such payment which are
required to be deposited in the Certificate Account have been or will be so
deposited) of a Servicing Officer and a request for release of the Trustee
Mortgage File in the form of Exhibit C hereto the Trustee shall promptly release
the related Trustee Mortgage File to the Master Servicer and the Trustee shall
execute and deliver to the Master Servicer the deed of reconveyance or release,
satisfaction or assignment of mortgage or such instrument releasing the lien of
the Mortgage, as directed by the Master Servicer together with the Mortgage Note
with written evidence of cancellation thereon. The provisions of the immediately
preceding sentence shall not, in any manner, limit or impair the right of the
Master Servicer to execute and deliver, on behalf of the Trustee, the
Certificateholders, the holder of the RSA Companion Loan, the holder of any B
Note or any of them, any and all instruments of satisfaction, cancellation or
assignment without recourse, representation or warranty, or of partial or full
release or discharge and all other comparable instruments, with respect to the
Mortgage Loans, the RSA Companion Loan or any B Note, and with respect to the
Mortgaged Properties held for the benefit of the Certificateholders, the holder
of the RSA Companion Loan and the holder of any B Note. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Distribution Account but shall be paid by the Master Servicer
except to the extent that such
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expenses are paid by the related Mortgagor in a manner consistent with the terms
of the related Mortgage and applicable law. From time to time and as shall be
appropriate for the servicing of any Mortgage Loan, including for such purpose,
collection under any policy of flood insurance, any Servicer Fidelity Bond or
Errors and Omissions Policy, or for the purposes of effecting a partial or total
release of any Mortgaged Property from the lien of the Mortgage or the making of
any corrections to the Mortgage Note or the Mortgage or any of the other
documents included in the Trustee Mortgage File, the Trustee shall, upon request
of the Master Servicer and the delivery to the Trustee of a Request for Release
signed by a Servicing Officer, in the form of Exhibit C hereto, release the
Trustee Mortgage File to the Master Servicer or the Special Servicer, as the
case may be.
SECTION 8.9 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
MASTER SERVICER TO BE HELD FOR THE TRUSTEE FOR THE BENEFIT OF THE
CERTIFICATEHOLDERS.
Notwithstanding any other provisions of this Agreement, the
Master Servicer shall transmit to the Trustee, to the extent required by this
Agreement, all documents and instruments coming into the possession of the
Master Servicer from time to time and shall account fully to the Trustee and the
Paying Agent for any funds received or otherwise collected thereby, including
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan. All
Servicer Mortgage Files and funds collected or held by, or under the control of,
the Master Servicer in respect of any Mortgage Loans (or any B Note or the RSA
Companion Loan), whether from the collection of principal and interest payments
or from Liquidation Proceeds or Insurance Proceeds, including any funds on
deposit in the Certificate Account (or any A/B Loan Custodial Account or the RSA
Companion Loan Custodial Account), shall be held by the Master Servicer for and
on behalf of the Trustee and the Certificateholders (or the holder of any B Note
or the RSA Companion Loan, as applicable) and shall be and remain the sole and
exclusive property of the Trustee, subject to the applicable provisions of this
Agreement. The Master Servicer agrees that it shall not create, incur or subject
any Servicer Mortgage Files or Trustee Mortgage File or any funds that are
deposited in the Certificate Account or any Escrow Account, or any funds that
otherwise are or may become due or payable to the Trustee or the Paying Agent,
to any claim, lien, security interest, judgment, levy, writ of attachment or
other encumbrance, or assert by legal action or otherwise any claim or right of
setoff against any Servicer Mortgage Files or Trustee Mortgage File or any funds
collected on, or in connection with, a Mortgage Loan, except, however, that the
Master Servicer shall be entitled to receive from any such funds any amounts
that are properly due and payable to the Master Servicer under this Agreement.
SECTION 8.10 SERVICING COMPENSATION.
(a) As compensation for its activities hereunder, the
Master Servicer shall be entitled to the Master Servicing Fee, which shall be
payable by the Trust from amounts held in the Certificate Account (and from the
related A/B Loan Custodial Account to the extent related solely to a B Note and
from the RSA Companion Loan Custodial Account to the extent related solely to
the RSA Companion Loan) or otherwise collected from the Mortgage Loans as
provided in Section 5.2. The Master Servicer shall be required to pay to the
Primary Servicer its related Primary Servicing Fees, which shall be payable by
the Trust from amounts as provided in Section 5.1(c), unless retained by the
Primary Servicer from amounts transferred to the Master
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Servicer in accordance with the terms of the Primary Servicing Agreement. The
Master Servicer shall be required to pay to the holders of the rights to the
Excess Servicing Fees, the Excess Servicing Fees, which shall be payable by the
Trust as provided in Section 5.1(c), unless otherwise retained by the holders of
such rights. Notwithstanding anything herein to the contrary, if any of the
holders of the right to receive Excess Servicing Fees resigns or is no longer
Master Servicer or Primary Servicer, as applicable, for any reason, it will
continue to have the right to receive its portion of the Excess Servicing Fee,
and any of the holders of the right to receive Excess Servicing Fees shall have
the right to assign its portion of the Excess Servicing Fee, whether or not it
is then acting as Master Servicer or Primary Servicer hereunder. The Master
Servicer shall also be entitled to the Primary Servicing Fee, which shall be
payable by the Trust from amounts held in the Certificate Account (or a
sub-account thereof) or otherwise collected from the Mortgage Loans as provided
in Section 5.2, provided that the Primary Servicing Fee payable to the Master
Servicer shall only be collected from the Mortgage Loans set forth on Schedule
III, except as provided in Section 8.28(b).
(b) Additional servicing compensation in the form of
assumption fees, extension fees, servicing fees, default interest (excluding
default interest allocable to any B Note if the holder of the B Note has cured
the related default pursuant to the terms of the related Intercreditor
Agreement) payable at a rate above the Mortgage Rate (net of any amount used to
pay Advance Interest), Modification Fees, forbearance fees, Late Fees (net of
Advance Interest) (excluding Late Fees allocable to any B Note if the holder of
the B Note has cured the related default pursuant to the terms of the related
Intercreditor Agreement) or other usual and customary charges and fees actually
received from Mortgagors shall be retained by the Master Servicer, provided that
the Master Servicer shall be entitled to (i) receive 50% of assumption fees
collected on Mortgage Loans as provided in Section 8.7(a), (ii) Modification
Fees as provided in Section 8.18 hereof, and (iii) 100% of any extension fees
collected from the related Mortgagor in connection with the extension of the
Maturity Date of any Mortgage Loan as provided in Section 8.18; provided,
however, that the Master Servicer shall not be entitled to any such fees in
connection with any Specially Serviced Mortgage Loans or the Xxxx Xxxxxxx Tower
Pari Passu Loan. If the Master Servicer collects any amount payable to the
Special Servicer hereunder in connection with an REO Mortgage Loan or Specially
Serviced Mortgage Loan, the Master Servicer shall promptly remit such amount to
the Special Servicer as provided in Section 5.2. The Master Servicer shall be
required to pay all applicable expenses incurred by it in connection with its
servicing activities hereunder.
(c) Notwithstanding any other provision herein, with
respect to any Distribution Date, the Master Servicing Fee for each monthly
period relating to such Distribution Date (together with any investment income
earned prior to such Distribution Date on Principal Prepayments as to which
Prepayment Interest Shortfalls were incurred with respect to such Distribution
Date) shall be reduced by an amount equal to the Compensating Interest (if any)
relating to Mortgage Loans which are not Specially Serviced Mortgage Loans for
such Determination Date.
(d) The Master Servicer shall also be entitled to
additional servicing compensation of (i) an amount equal to the excess, if any,
of the aggregate Prepayment Interest Excess relating to Mortgage Loans which are
not Specially Serviced Mortgage Loans for each Distribution Date over the
aggregate Prepayment Interest Shortfalls for such Mortgage Loans for such
Distribution Date, (ii) interest or other income earned on deposits in the
Certificate Account
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and the Distribution Account (but only to the extent of the net investment
earnings, if any, with respect to each such account), and, (iii) to the extent
not required to be paid to any Mortgagor under applicable law, any interest or
other income earned on deposits in the Escrow Accounts.
SECTION 8.11 MASTER SERVICER REPORTS; ACCOUNT STATEMENTS.
(a) For each Distribution Date, (i) the Master Servicer
shall deliver to the Paying Agent, (or with respect to the RSA Companion Loan,
to the holder thereof or its servicer), no later than 1:00 p.m., New York City
time, on the related Report Date, the Master Servicer Remittance Report with
respect to such Distribution Date including any information regarding
prepayments made pursuant to Section 5.2(b) and (ii) the Master Servicer shall
report to the Paying Agent on the related Advance Report Date, the amount of the
P&I Advance, if any, to be made by the Master Servicer on the related Master
Servicer Remittance Date. The Special Servicer is required to provide all
applicable information relating to Specially Serviced Mortgage Loans in order
for the Master Servicer to satisfy its duties in this Section 8.11. The Master
Servicer Remittance Report shall be updated no later than 2:00 p.m. on the
second Business Day prior to the Distribution Date to reflect any payment on a
Mortgage Loan, the RSA Companion Loan or a B Note for which the Scheduled
Payment is paid on a Due Date (or within its grace period) that occurs after the
end of the related Collection Period.
(b) The Master Servicer shall deliver to the Trustee, the
Paying Agent and the Special Servicer within 30 days following each Distribution
Date a statement setting forth the status of the Certificate Account as of the
close of business on such Distribution Date showing, for the period covered by
such statement, the aggregate of deposits in or withdrawals from the Certificate
Account, and shall deliver to each holder of a B Note and the RSA Companion Loan
within 30 days following each Distribution Date a statement setting forth the
status of the related A/B Loan Custodial Account and the RSA Companion Loan
Custodial Account, as of the close of business on such Distribution Date
showing, for the period covered by such statement, the aggregate of transfers in
and transfers from or deposits in or withdrawals from such A/B Loan Custodial
Account or the RSA Companion Loan Custodial Account, as applicable.
(c) The Master Servicer shall promptly inform the Special
Servicer of the name, account number, location and other necessary information
concerning the Certificate Account in order to permit the Special Servicer to
make deposits therein.
(d) Reserved
(e) The Master Servicer shall deliver a copy of any reports
or information delivered to the Trustee or the Paying Agent pursuant to
subsection (a) or subsection (b) of this Section 8.11 to the Depositor, the
Special Servicer, the Operating Adviser and each Rating Agency, in each case
upon request by such Person and only to the extent such reports and information
are not otherwise required to be delivered to such Person under any provision of
this Agreement.
(f) Notwithstanding any provision of this Agreement to the
contrary, the Master Servicer shall not have any obligation (other than to the
Special Servicer and, to the extent provided in the last sentence of Section
8.14, the Operating Adviser) to deliver any statement, notice or report that is
then made available on the Master Servicer's or the Paying
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Agent's internet website, provided that it has notified all parties entitled to
delivery of such reports, by electronic mail or other notice provided in this
Agreement, to the effect that such statements, notices or reports shall
thereafter be made available on such website from time to time.
(g) The Master Servicer shall deliver or cause to be
delivered to the Paying Agent, and the holder of the RSA Companion Loan (in
respect of such RSA Companion Loan) the following CMSA Reports with respect to
the Mortgage Loans (and, if applicable, the related REO Properties and, to the
extent received from the LB-UBS Series 2003-C5 Master Servicer, the Xxxx Xxxxxxx
Tower Pari Passu Loan) providing the required information as of the related
Determination Date upon the following schedule: (i) a Comparative Financial
Status Report not later than each Report Date, commencing in October 2003; (ii)
a CMSA Operating Statement Analysis Report, the Financial File and an NOI
Adjustment Worksheet in accordance with Section 8.14 of this Agreement; (iii) a
Servicer Watch List in accordance with and subject to the terms of Section
8.11(h) on each Report Date, commencing in October 2003; (iv) a Loan Set-Up File
(with respect to the initial Distribution Date only) not later than the Report
Date in September 2003; (v) a Loan Periodic Update File not later than each
Report Date commencing in September 2003; (vi) a Property File not later than
each Report Date, commencing in October 2003; (vii) a Delinquent Loan Status
Report on each Report Date, commencing in October 2003; (viii) an Historical
Loan Modification Report not later than each Report Date, commencing in October
2003, (ix) an Historical Liquidation Report not later than each Report Date,
commencing in October 2003; and (x) an REO Status Report on each Report Date,
commencing in October 2003. The information that pertains to Specially Serviced
Mortgage Loans and REO Properties reflected in such reports shall be based
solely upon the reports delivered by the Special Servicer to the Master Servicer
in writing and on a computer readable medium reasonably acceptable to the Master
Servicer and the Special Servicer one (1) Business Day after the Determination
Date prior to the related Master Servicer Remittance Date in the form required
under Section 9.32. The Master Servicer's responsibilities under this Section
8.11(g) with respect to REO Mortgage Loans and Specially Serviced Mortgage Loans
shall be subject to the satisfaction of the Special Servicer's obligations under
Section 9.32. The reporting obligations of the Master Servicer in connection
with any A/B Mortgage Loan shall be construed to refer only to such information
regarding the A/B Mortgage Loan (and its related Mortgaged Property) and by
reference to the related A Note only, but whenever the Master Servicer remits
funds to the holder of the related B Note, it shall thereupon deliver to such
holder a remittance report identifying the amounts in such remittance.
(h) For each Distribution Date, the Master Servicer shall
deliver to the Paying Agent (and solely with respect to any A/B Mortgage Loan,
the holder of the related B Note and solely with respect to the Loan Pair, the
holder of the RSA Companion Loan), not later than the related Report Date, a
Servicer Watch List. The Master Servicer shall list any Mortgage Loan on the
Servicer Watch List as to which any of the events specified in the CMSA Watch
List published by the CMSA for industry use has occurred.
(i) If the Master Servicer delivers a notice of drawing to
effect a drawing on any letter of credit or debt service reserve account under
which the Trust has rights as the holder of any Mortgage Loan for purposes other
than payment or reimbursement of amounts contemplated in and by a reserve or
escrow agreement (other than after a default under an applicable Mortgage Loan
or B Note), the Master Servicer shall, within five (5) Business Days
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following its receipt of the proceeds of such drawing, deliver notice thereof to
the Special Servicer, the Operating Adviser and the Paying Agent, which notice
shall set forth (i) the unpaid Principal Balance of such Mortgage Loan or B Note
immediately before and immediately after the drawing, and (ii) a brief
description of the circumstances that in the Master Servicer's good faith and
reasonable judgment entitled the Master Servicer to make such drawing.
(j) The Master Servicer, the Special Servicer, the Trustee
and the Paying Agent, as applicable, but not the Primary Servicer, shall prepare
and deliver (or make available on their respective websites) to the Operating
Adviser the reports and information described in Exhibit BB (to the extent not
otherwise delivered pursuant to this Agreement) in the form and format and
within the time frame set forth therein.
(k) If the Operating Adviser and the Special Servicer are
Affiliates of one another, a report delivered to one of them by the Master
Servicer need not also be delivered to the other of them.
SECTION 8.12 ANNUAL STATEMENT AS TO COMPLIANCE. The Master
Servicer shall deliver to the Depositor, the Paying Agent, the Luxembourg Paying
Agent and the Trustee on or before March 15 of each year (or March 14 if a leap
year), commencing in March 2004, an Officer's Certificate stating, as to the
signer thereof, that (A) a review of the activities of the Master Servicer
during the preceding calendar year or portion thereof and of the performance of
the Master Servicer under this Agreement has been made under such officer's
supervision and (B) to the best of such officer's knowledge, based on such
review, the Master Servicer has fulfilled all its obligations under this
Agreement in all material respects throughout such year, or, if there has been a
default in the fulfillment of any such obligation, specifying each such default
known to such officer and the nature and status thereof. The Master Servicer
shall forward a copy of each such statement to the Rating Agencies and the
Operating Adviser. Promptly after receipt of such Officer's Certificate, the
Depositor shall review the Officer's Certificate and, if applicable, consult
with the Master Servicer as to the nature of any defaults by the Master Servicer
in the fulfillment of any of the Master Servicer's obligations hereunder.
SECTION 8.13 ANNUAL INDEPENDENT PUBLIC ACCOUNTANTS' SERVICING
REPORT. On or before noon (Eastern Time) on March 15 of each year (or March 14
if a leap year), commencing in March 2004, the Master Servicer at its expense
shall cause a firm of nationally recognized independent public accountants
(which may also render other services to the Master Servicer) and that is a
member of the American Institute of Certified Public Accountants to furnish a
statement to the Trustee, the Paying Agent, the Luxembourg Paying Agent and the
Depositor, with a copy to the Rating Agencies, to the effect that (i) it has
obtained a letter of representation regarding certain matters from the
management of the Master Servicer, which includes an assertion that the Master
Servicer has complied with certain minimum mortgage loan servicing standards (to
the extent applicable to commercial and multifamily mortgage loans), identified
in the Uniform Single Attestation Program for Mortgage Bankers established by
the Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of
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commercial and multifamily mortgage loans by any Primary Servicer or
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
such Primary Servicer or Sub-Servicers. Promptly after receipt of such report,
the Depositor shall review the report and, if applicable, consult with the
Master Servicer as to the nature of any defaults by the Master Servicer in the
fulfillment of any of the Master Servicer's obligations hereunder.
SECTION 8.14 CMSA OPERATING STATEMENT ANALYSIS REPORTS
REGARDING THE MORTGAGED PROPERTIES. Within 105 calendar days after the end of
each of the first three calendar quarters (in each year) for the trailing or
quarterly information received, commencing in the quarter ending on September
30, 2003, the Master Servicer (in the case of Mortgage Loans that are not
Specially Serviced Mortgage Loans) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall deliver to the Paying Agent and the
Operating Adviser a CMSA Operating Statement Analysis Report and a CMSA
Financial File for each Mortgaged Property (in electronic format), prepared
using the non-normalized quarterly and normalized year-end operating statements
and rent rolls received from the related Mortgagor. Not later than the Report
Date occurring in June of each year, beginning in 2004 for year-end 2003, the
Master Servicer (in the case of Mortgage Loans that are not Specially Serviced
Mortgage Loans) or the Special Servicer (in the case of Specially Serviced
Mortgage Loans) shall deliver to the Paying Agent and the Operating Adviser a
CMSA Operating Statement Analysis Report, a CMSA Financial File and an NOI
Adjustment Worksheet for each Mortgage Loan (in electronic format), based on the
most recently available year-end financial statements and most recently
available rent rolls of each applicable Mortgagor (to the extent provided to the
Master Servicer by or on behalf of each Mortgagor, or, in the case of Specially
Serviced Mortgaged Loans, as provided to the Special Servicer, which Special
Servicer shall forward such information to the Master Servicer on or before May
31 of each such year), containing such information and analyses for each
Mortgage Loan provided for in the respective forms of CMSA Operating Statement
Analysis Report, CMSA Financial File and an NOI Adjustment Worksheet as would
customarily be included in accordance with the Servicing Standard including,
without limitation, Debt Service Coverage Ratios and income, subject, in the
case of the Xxxx Xxxxxxx Tower Pari Passu Loan, to the receipt of such report
from the LB-UBS Series 2003-C5 Master Servicer or the LB-UBS Series 2003-C5
Special Servicer. The Master Servicer shall make reasonable efforts, consistent
with the Servicing Standard, to obtain such reports from the LB-UBS Series
2003-C5 Master Servicer or the LB-UBS Series 2003-C5 Special Servicer. In
addition, the Master Servicer shall deliver to the Operating Adviser, and upon
request the Master Servicer shall make available to the Rating Agencies, the
Special Servicer, the Paying Agent, the Trustee and the holder of the RSA
Companion Loan, within 30 days following receipt thereof by the Master Servicer,
copies of any annual, monthly or quarterly financial statements and rent rolls
collected with respect to the Mortgaged Properties. As and to the extent
reasonably requested by the Special Servicer, the Master Servicer shall make
inquiry of any Mortgagor with respect to such information or as regards the
performance of the related Mortgaged Property in general. The Paying Agent shall
provide or make available electronically at no cost to the Certificateholders or
Certificate Owners, the Rating Agencies, the Operating Adviser, the Depositor,
the Placement Agents, the Underwriters, and solely as it relates to any A/B
Mortgage Loan, to the holder of the related B Note and solely as it relates to
the Loan Pair, to the holder of the RSA Companion Loan, the CMSA Operating
Statement Analysis Reports, CMSA Financial Files and NOI
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Adjustment Worksheets described above pursuant to Section 5.4(a). The Master
Servicer (but not the Primary Servicer under the Primary Servicing Agreement)
shall electronically deliver the CMSA Operating Statement Analysis Report, the
operating statements, rent rolls, property inspections and NOI Adjustment
Worksheet for each Mortgage Loan to the Operating Adviser using the ARCap Naming
Convention.
SECTION 8.15 OTHER AVAILABLE INFORMATION AND CERTAIN RIGHTS
OF THE MASTER SERVICER.
(a) Subject to paragraphs (b), (c) and (d) below, the
Paying Agent shall make available at its Corporate Trust Office, during normal
business hours, upon reasonable advance written notice for review by any
Certificateholder, any Certificate Owner, any Seller, any Primary Servicer, any
Placement Agent, any Underwriter, each Rating Agency, the Paying Agent or the
Depositor (and the holder of a B Note, if it relates to a B Note and the holder
of the RSA Companion Loan, if it relates to the RSA Companion Loan), originals
or copies of, among other things, the following items: (i) this Agreement and
any amendments thereto, (ii) all final and released CMSA Operating Statement
Analysis Reports and the Master Servicer Remittance Reports, (iii) all Officer's
Certificates (including Officer's Certificates evidencing any determination of
Nonrecoverable Advances) delivered to the Trustee and the Paying Agent since the
Closing Date, (iv) all accountants' reports delivered to the Trustee and the
Paying Agent since the Closing Date, (v) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Master Servicer
and/or the Special Servicer and (vi) any and all Officers' Certificates (and
attachments thereto) delivered to the Trustee and the Paying Agent to support
the Master Servicer's determination that any Advance was not or, if made, would
not be, recoverable. The Trustee and the Paying Agent will be permitted to
require payment of a sum to be paid by the requesting party (other than the
Rating Agencies, the Trustee, the Paying Agent, any Placement Agent or any
Underwriter) sufficient to cover the reasonable costs and expenses of making
such information available.
(b) Subject to the restrictions described below, the Master
Servicer shall afford the Rating Agencies, the Depositor, the Trustee, the
Paying Agent, the Special Servicer, the Primary Servicer, the Sellers, the
Placement Agents, the Underwriters, the Operating Adviser, any
Certificateholder, any holder of the RSA Companion Loan, any holder of a B Note
or any Certificate Owner, upon reasonable notice and during normal business
hours, reasonable access to all information referred to in Section 8.15(a) and
any additional relevant, non-attorney-client-privileged records and
documentation regarding the applicable Mortgage Loans, REO Property and all
accounts, insurance policies and other relevant matters relating to this
Agreement (which access may occur by means of the availability of information on
the Master Servicer's or the Paying Agent's internet website), and access to
Servicing Officers of the Master Servicer responsible for its obligations
hereunder. Copies of information or access will be provided to
Certificateholders and each Certificate Owner providing satisfactory evidence of
ownership of Certificates or beneficial ownership of a Certificate, as the case
may be, which may include a certification. Copies (or computer diskettes or
other digital or electronic copies of such information if reasonably available
in lieu of paper copies) of any and all of the foregoing items shall be made
available by the Master Servicer upon request; provided, however, that the
Master Servicer shall be permitted to require payment by the requesting party
(other than the Depositor, the Trustee, the Paying Agent, the Special Servicer,
the Operating Adviser, any Placement
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Agent, any Underwriter, or any Rating Agency) of a sum sufficient to cover the
reasonable expenses actually incurred by the Master Servicer of providing access
or copies (including electronic or digital copies) of any such information
requested in accordance with the preceding sentence.
(c) Nothing herein shall be deemed to require the Master
Servicer to confirm, represent or warrant the accuracy of (or to be liable or
responsible for) any other Person's information or report. Notwithstanding the
above, the Master Servicer shall not have any liability to the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer, the LB-UBS
Series 2003-C5 Master Servicer, the LB-UBS Series 2003-C5 Special Servicer, any
Certificateholder, any Certificate Owner, any holder of the RSA Companion Loan,
any holder of a B Note, any Placement Agent, any Underwriter, any Rating Agency
or any other Person to whom it delivers information pursuant to this Section
8.15 or any other provision of this Agreement for federal, state or other
applicable securities law violations relating to the disclosure of such
information. In the event any Person brings any claims relating to or arising
from the foregoing against the Master Servicer (or any employee, attorney,
officer, director or agent thereof), the Trust (from amounts held in any account
(including (x) with respect to any such claims relating to the RSA Companion
Loan, from amounts held in the RSA Companion Loan Custodial Account and (y) with
respect to any such claims relating to a B Note, from amounts held in the
related A/B Loan Custodial Account) or otherwise) shall hold harmless and
indemnify the Master Servicer from any loss or expense (including attorney fees)
relating to or arising from such claims.
(d) The Master Servicer shall produce the reports required
of it under this Agreement; provided, however, that the Master Servicer shall
not be required to produce any ad hoc non-standard written reports with respect
to such Mortgage Loans. In the event the Master Servicer elects to provide such
non-standard reports, it may require the Person requesting such report (other
than a Rating Agency) to pay a reasonable fee to cover the costs of the
preparation thereof. Notwithstanding anything to the contrary herein, as a
condition to the Master Servicer making any report or information available upon
request to any Person other than the parties hereto, the Master Servicer may
require that the recipient of such information acknowledge that the Master
Servicer may contemporaneously provide such information to the Depositor, the
Trustee, the Fiscal Agent, the Paying Agent, the Special Servicer, the Primary
Servicer, the Sellers, any Placement Agent, any Underwriter, any Rating Agency
and/or the Certificateholders, the holder of the RSA Companion Loan, the holder
of a B Note or Certificate Owners. Any transmittal of information by the Master
Servicer to any Person other than the Trustee, the Paying Agent, the Master
Servicer, the Special Servicer, the Rating Agencies, the Operating Adviser or
the Depositor may be accompanied by a letter from the Master Servicer containing
the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities laws restrict
any person who possesses material, non-public information regarding the
Trust which issued Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2003-TOP11 from purchasing or selling
such Certificates in circumstances where the other party to the
transaction is not also in possession of such information. You also
acknowledge and agree that such information is being provided to you
for the purpose of, and such information may be used only in connection
with,
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evaluation by you or another Certificateholder, Certificate Owner or
prospective purchaser of such Certificates or beneficial interest
therein."
(e) The Master Servicer may, at its discretion, make
available by electronic media and bulletin board service certain information and
may make available by electronic media or bulletin board service (in addition to
making such information available as provided herein) any reports or information
required by this Agreement that the Master Servicer is required to provide to
any of the Rating Agencies, the Depositor and anyone the Depositor reasonably
designates.
(f) The Master Servicer shall cooperate in providing the
Rating Agencies with such other pertinent information relating to the Mortgage
Loans as is or should be in their respective possession as the Rating Agencies
may reasonably request.
SECTION 8.16 RULE 144A INFORMATION. For as long as any of the
Certificates are "restricted securities" within the meaning of Rule 144A under
the Securities Act, the Master Servicer agrees to provide to the Paying Agent or
the Luxembourg Paying Agent, as applicable, for delivery to any Holder thereof,
any Certificate Owner therein and to any prospective purchaser of the
Certificates or beneficial interest therein reasonably designated by the Paying
Agent or the Luxembourg Paying Agent, as applicable, upon the request of such
Certificateholder, such Certificate Owner, the Paying Agent or the Luxembourg
Paying Agent, as applicable, subject to this Section 8.16 and the provisions of
Sections 5.4 and 8.15, any information prepared by the Master Servicer that is
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act, including,
without limitation, copies of the reports and information described in Sections
8.15(a) and (b).
Any recipient of information provided pursuant to this Section
8.16 shall agree that such information shall not be disclosed or used for any
purpose other than the evaluation of the Certificates by such Person and the
Master Servicer shall be permitted to use the letter referred to in Section
8.15(d). Unless the Master Servicer chooses to deliver the information directly,
the Depositor, the Placement Agents, the Underwriters, the Paying Agent or the
Luxembourg Paying Agent shall be responsible for the physical delivery of the
information requested pursuant to this Section 8.16. As a condition to the
Master Servicer making any report or information available upon request to any
Person other than the parties hereto, the Master Servicer may require that the
recipient of such information acknowledge that the Master Servicer may
contemporaneously provide such information to the Depositor, the Trustee, the
Paying Agent, the Luxembourg Paying Agent, the Placement Agents, the
Underwriters, any Rating Agency and/or the Certificateholders and Certificate
Owners. The Master Servicer will be permitted to require payment of a sum to be
paid by the requesting party (other than the Rating Agencies, the Trustee, the
Paying Agent, the Placement Agents or the Underwriters) sufficient to cover the
reasonable costs and expenses of making such information available.
SECTION 8.17 INSPECTIONS. The Master Servicer shall, at its
own expense, inspect or cause to be inspected each Mortgaged Property other than
Mortgaged Properties related to Specially Serviced Mortgage Loans and the Xxxx
Xxxxxxx Tower Pari Passu Loan, every calendar year beginning in 2004, or every
second calendar year beginning in 2004 if the Principal Balance of the related
Mortgage Loan or Loan Pair is less than $2,000,000; provided
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that the Master Servicer shall, at the expense of the Trust, inspect or cause to
be inspected each Mortgaged Property related to a Mortgage Loan that has a Debt
Service Coverage Ratio that falls below 1.0x and; provided further, that with
respect to any Mortgage Loan or Loan Pair that has a Principal Balance of less
than $2,000,000 and has been placed on the Servicer Watch List, the Master
Servicer shall, at the expense of the Trust and at request of the Controlling
Class, inspect or cause to be inspected the related Mortgaged Property every
calendar year beginning in 2004 so long as such Mortgage Loan or Loan Pair
continues to be on the Servicer Watch List; provided, if such Mortgage Loan or
Loan Pair is no longer on the Servicer Watch List at the time the inspection was
scheduled, no such inspection shall be required. The Master Servicer shall
prepare an Inspection Report relating to each inspection. The Master Servicer
shall promptly forward the applicable Inspection Report to the Rating Agencies,
the Placement Agents, the Underwriters, the Depositor, the Trustee, the Paying
Agent, the Operating Adviser, the Special Servicer, solely as it relates to the
Loan Pair, to the holder of the RSA Companion Loan, and solely as it relates to
any A/B Mortgage Loan, to the holder of the related B Note, and upon request, to
any Certificateholder, any Certificate Owner, any Seller and any Primary
Servicer. The Special Servicer shall have the right to inspect or cause to be
inspected (at its own expense) every calendar year any Mortgaged Property
related to a Mortgage Loan that is not a Specially Serviced Mortgage Loan,
provided that the Special Servicer notifies the Master Servicer prior to such
inspection.
SECTION 8.18 MODIFICATIONS, WAIVERS, AMENDMENTS, EXTENSIONS
AND CONSENTS.
Subject to the limitations of Section 12.3 hereof, the Master
Servicer shall have the following powers:
(a) (i) The Master Servicer in accordance with the
Servicing Standard may agree to any modification, waiver, amendment or consent
of or relating to any term (including, without limitation, Master Servicer
Consent Matters set forth in Section 8.3(a) hereof) other than a Money Term of a
Mortgage Loan, the RSA Companion Loan or a B Note that is not a Specially
Serviced Mortgage Loan, provided that such amendment would not result in an
Adverse REMIC Event; and provided, further that if any consent relates to a
release of a letter of credit relating to any Mortgage Loan (other than letters
of credit or portions thereof released upon satisfaction of conditions specified
in the related agreements), then (i) the Master Servicer shall notify the
Special Servicer of any Mortgagor's request to release such letter of credit
which the Master Servicer recommends to release, and (ii) if the terms of the
related Mortgage Loan do not require the Master Servicer to approve such
release, then the Special Servicer shall within five Business Days provide
notice to the Master Servicer as to whether the Master Servicer should approve
the release (and the failure of the Special Servicer to give the Master Servicer
such notice shall automatically be deemed to be an approval by the Special
Servicer that the Master Servicer should grant such release). Notwithstanding
the preceding sentence, if the Master Servicer recommends to approve such
modification, waiver, amendment or consent which is not a Master Servicer
Consent Matter (including, without limitation, any waiver of any requirement
that the Mortgagor post additional reserves or a letter of credit upon the
failure of the Mortgagor to satisfy conditions specified in the Mortgage Loan
documents), the Master Servicer shall provide to the Special Servicer a copy of
the Master Servicer's recommendation and the relevant information obtained or
prepared by the Master Servicer in connection therewith; provided, that (A) the
Special Servicer shall have the right hereunder to
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grant or withhold consent to any such proposed modification, waiver, amendment
or consent, and such consent of the Special Servicer shall not be unreasonably
withheld, consistent with the Servicing Standard, (B) failure of the Special
Servicer to notify the Master Servicer, within five Business Days following the
Master Servicer's delivery of the recommendation described above, of its
determination to grant or withhold such consent shall be deemed to constitute a
grant of such consent and (C) the Master Servicer shall not enter into any such
proposed modification, waiver, amendment or consent unless it has received the
written consent of the Special Servicer or such consent has been deemed to have
been granted as described above. Notwithstanding anything in this Agreement to
the contrary, the Master Servicer shall not be required to obtain or request the
consent of the Special Servicer in connection with any modification, waiver or
amendment, or granting its consent to transactions, under one or more of the
Mortgage Loans that in each case the Master Servicer has determined (in
accordance with the Servicing Standard) is immaterial. In any event, the Master
Servicer shall promptly notify the Special Servicer of any material
modification, waiver, amendment or consent executed by the Master Servicer
pursuant to this Section 8.18(a)(i) and provide to the Special Servicer a copy
thereof. Notwithstanding the foregoing provisions of this Section 8.18, if the
Mortgage Loan documents require a Mortgagor to pay a fee for an assumption,
modification, waiver, amendment or consent that would be due or partially due to
the Special Servicer, then the Master Servicer shall not waive the portion of
such fee due to the Special Servicer without the Special Servicer's approval.
Notwithstanding the foregoing, the Special Servicer
acknowledges that the Master Servicer has delegated certain tasks, rights and
obligations to the Primary Servicer with respects to Post Closing Requests (as
defined in the Primary Servicing Agreement) pursuant to Section 8.4 of this
Agreement. The Primary Servicing Agreement classifies certain Post Closing
Requests as Category 1 Requests (as defined in the Primary Servicing Agreement),
in which the Primary Servicer has certain authority to evaluate and process such
requests in accordance with this Agreement, the applicable Primary Servicing
Agreement and applicable Mortgage Loan documents.
With respect to a Category 1 Request that involves a
condition, term or provision that requires, or specifies a standard of, consent
or approval of the applicable Mortgagee under the Mortgage Loan documents, the
Primary Servicing Agreement provides for Master Servicer's determination of
materiality of such condition, term or provision requiring approval or consent
and the referral of such condition, term or provision to the Special Servicer
for consent in accordance with the terms of the Primary Servicing Agreement upon
a determination of materiality. The Special Servicer acknowledges such
provisions. Nothing in this Agreement, however, shall grant the Primary Servicer
greater authority, discretion or delegated rights over Post Closing Requests
than are set forth in the Primary Servicing Agreement.
(ii) The Master Servicer may, without the consent of the
Special Servicer, extend the maturity date of any Balloon Mortgage Loan that is
not a Specially Serviced Mortgage Loan to a date that is not more than 60 days
following the original Maturity Date, if in the Master Servicer's sole judgment
exercised in good faith (and evidenced by an Officer's Certificate), a default
in the payment of the Balloon Payment is reasonably foreseeable and such
extension is reasonably likely to produce a greater recovery to the Holders and
the holders of the related B Note and the RSA Companion Loan (as a collective
whole) on a net present value basis
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than liquidation of such Mortgage Loan and the Mortgagor has obtained an
executed written commitment (subject only to satisfaction of conditions set
forth therein) for refinancing of the Mortgage Loan or purchase of the related
Mortgaged Property. The Master Servicer shall process all such extensions and
shall be entitled to (as additional servicing compensation) 100% of any
extension fees collected from a Mortgagor with respect to any such extension.
(b) The Master Servicer may require, in its discretion
(unless prohibited or otherwise provided in the Mortgage Loan documents), as a
condition to granting any request by a Mortgagor for any consent, modification,
waiver or amendment, that such Mortgagor pay to the Master Servicer a reasonable
and customary modification fee to the extent permitted by law; provided that the
collection of such fee shall not be permitted if collection of such fee would
cause a "significant modification" (within the meaning of Treasury Regulation
Section 1.860G-2(b) of the Mortgage Loan). The Master Servicer shall be entitled
to (as additional servicing compensation) 100% of any Modification Fees
collected from a Mortgagor in connection with a consent, waiver, modification or
amendment of a non-Specially Serviced Mortgage Loan executed or granted pursuant
to Section 8.3 or this Section 8.18. The Master Servicer may charge the
Mortgagor for any costs and expenses (including attorneys' fees and rating
agency fees) incurred by the Master Servicer or the Special Servicer (which
amounts shall be reimbursed to the Special Servicer) in connection with any
request for a modification, waiver or amendment. The Master Servicer agrees to
use its best reasonable efforts in accordance with the Servicing Standard to
collect such costs, expenses and fees from the Mortgagor, provided that the
failure or inability of the Mortgagor to pay any such costs and expenses shall
not impair the right of the Master Servicer to cause such costs and expenses
(but not including any modification fee), and interest thereon at the Advance
Rate, to be paid or reimbursed by the Trust as a Servicing Advance (to the
extent not paid by the Mortgagor). If the Master Servicer believes that the
costs and expenses (including attorneys' fees) to be incurred by the Master
Servicer in connection with any request for a modification, waiver or amendment
will result in a payment or reimbursement by the Trust, then the Master Servicer
shall notify the Special Servicer.
(c) The Master Servicer shall notify the Trustee, the
Paying Agent, the Operating Adviser and the Special Servicer of any
modification, waiver or amendment of any term of any Mortgage Loan permitted by
it under this Section and the date thereof, and shall deliver to the Trustee for
deposit in the related Mortgage File, an original counterpart of the agreement
relating to such modification, waiver or amendment, promptly following the
execution thereof except to the extent such documents have been submitted to the
applicable recording office, in which event the Master Servicer shall promptly
deliver copies of such documents to the Trustee. The Master Servicer shall not
agree to any modification, waiver, or amendment of any Money Term of a Mortgage
Loan or any term of a Specially Serviced Mortgage Loan. The Master Servicer
shall notify the holder of the B Note and the RSA Companion Loan of any
modification of the monthly payments of an A/B Mortgage Loan or Loan Pair, as
the case may be, and such monthly payments shall be allocated in accordance with
the related Intercreditor Agreement or Loan Pair Intercreditor Agreement, as
applicable.
(d) If the Mortgage Loan documents relating to a Mortgage
Loan provide for certain conditions to be satisfied prior to the Master Servicer
releasing additional collateral for the Mortgage Loan (e.g., the release,
reduction or termination of reserves or letters of credit or the establishment
of reserves), then the Master Servicer shall be permitted to waive any such
condition without obtaining the consent of the Special Servicer, provided that
(1) the aggregate
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amount of the related releases or establishments is no greater than the smaller
of 10% of the outstanding unpaid Principal Balance or $75,000 or (2) the
condition to be waived is deemed to be non-material in accordance with the
Servicing Standard. Notwithstanding the foregoing, without the Special
Servicer's consent or except as provided in the specific Mortgage Loan
documents, the Master Servicer shall not waive: (1) a requirement for any such
additional collateral to exist, or (2) a lock box requirement.
(e) Neither the Master Servicer nor any Primary Servicer
will be required to obtain a Rating Agency Confirmation in connection with this
Agreement unless the terms of this Agreement specifically requires the Master
Servicer to do so, and if so required by the terms of this Agreement, the Master
Servicer and any Primary Servicer shall not be permitted to waive (i) the Rating
Agency Confirmation requirement or (ii) the obligation of a Mortgagor to pay all
or any portion of any fee payable in connection with obtaining the Rating Agency
Confirmation.
SECTION 8.19 SPECIALLY SERVICED MORTGAGE LOANS.
(a) The Master Servicer shall send a written notice to the
Special Servicer, the Operating Adviser, the Rating Agencies, the Paying Agent,
the Trustee and solely as it relates to any A/B Mortgage Loan, to the holder of
the related B Note and solely as it relates to the Loan Pair, to the holder of
the RSA Companion Loan, within two Business Days after becoming aware of a
Servicing Transfer Event with respect to a Mortgage Loan, which notice shall
identify the related Mortgage Loan and set forth in reasonable detail the nature
and relevant facts of such Servicing Transfer Event and whether such Mortgage
Loan is covered by an Environmental Insurance Policy (and for purposes of
stating whether such Mortgage Loan is covered by an Environmental Insurance
Policy the Master Servicer may rely on Schedule XVI attached hereto) and, except
for the Rating Agencies, the Paying Agent and the Trustee, shall be accompanied
by a copy of the Servicer Mortgage File. The Special Servicer shall not be
liable for its failure to deliver the notice set forth in Section 9.36(a) if
such failure is caused by its failure to receive the written notice set forth
above.
(b) Prior to the transfer of the servicing of any Specially
Serviced Mortgage Loan to the Special Servicer, the Master Servicer shall notify
the related Mortgagor of such transfer in accordance with the Servicing Standard
(the form and substance of such notice shall be reasonably satisfactory to the
Special Servicer).
(c) Any calculations or reports prepared by the Master
Servicer to the extent they relate to Specially Serviced Mortgage Loans shall be
based on information supplied to the Master Servicer in writing by the Special
Servicer as provided hereby. The Master Servicer shall have no duty to
investigate or confirm the accuracy of any information provided to it by the
Special Servicer and shall have no liability for the inaccuracy of any of its
reports due to the inaccuracy of the information provided by the Special
Servicer.
(d) On or prior to each Distribution Date, the Master
Servicer shall provide to the Special Servicer, in order for the Special
Servicer to comply with its obligations under this Agreement, such information
(and in the form and medium) as the Special Servicer may reasonably request in
writing from time to time, provided that (i) the Master Servicer shall not be
required to produce any ad hoc reports or incur any unusual expense or effort in
connection
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therewith and (ii) if the Master Servicer elects to provide such ad hoc reports,
it may require the Special Servicer to pay a reasonable fee to cover the costs
of the preparation thereof.
SECTION 8.20 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
MASTER SERVICER.
(a) The Master Servicer hereby represents and warrants to
and covenants with the Trustee and the Paying Agent, as of the date hereof:
(i) the Master Servicer is duly organized, validly
existing and in good standing as a national banking association under the laws
of the United States, and shall be and thereafter remain, in compliance with the
laws of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement, except where the
failure to so qualify or comply would not adversely affect the Master Servicer's
ability to perform its obligations hereunder in accordance with the terms of
this Agreement;
(ii) the Master Servicer has the full power and
authority to execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The Master Servicer
has duly and validly authorized the execution, delivery and performance of this
Agreement and this Agreement has been duly executed and delivered by the Master
Servicer; and this Agreement, assuming the due authorization, execution and
delivery thereof by the Depositor, the Trustee, the Fiscal Agent, the Paying
Agent and the Special Servicer, evidences the valid and binding obligation of
the Master Servicer enforceable against the Master Servicer in accordance with
its terms subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, receivership and other similar laws
affecting creditors' rights generally as from time to time in effect, and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, and the fulfillment of
or compliance with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or (2)
conflict with, result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument to which
it is a party or by which it may be bound, or any law, governmental rule,
regulation, or judgment, decree or order applicable to it of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects its ability to perform its
obligations under this Agreement;
(iv) no litigation is pending or, to the Master
Servicer's knowledge, threatened, against it, that would materially and
adversely affect the execution, delivery or enforceability of this Agreement or
its ability to service the Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(v) no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution, delivery
and performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated hereby, or if any such consent,
approval, authorization or order is required, it has obtained the
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same or will obtain the same prior to the time necessary to perform its
obligations under this Agreement, and, except to the extent in the case of
performance, that its failure to be qualified as a foreign corporation or
licensed in one or more states is not necessary for the performance by it of its
obligations hereunder; and
(vi) the performance of the services by the Master
Servicer contemplated by this Agreement are in the ordinary course of business
of the Master Servicer and the Master Servicer possesses all licenses, permits
and other authorizations necessary to perform its duties hereunder.
(b) It is understood that the representations and
warranties set forth in this Section 8.20 shall survive the execution and
delivery of this Agreement.
(c) Any cause of action against the Master Servicer arising
out of the breach of any representations and warranties made in this Section
shall accrue upon the giving of written notice to the Master Servicer by any of
the Trustee or the Master Servicer. The Master Servicer shall give prompt notice
to the Trustee, the Depositor, the Primary Servicer and the Special Servicer of
the occurrence, or the failure to occur, of any event that, with notice or the
passage of time or both, would cause any representation or warranty in this
Section to be untrue or inaccurate in any respect
SECTION 8.21 MERGER OR CONSOLIDATION. Any Person into which
the Master Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Master Servicer shall be a party, or any Person succeeding to the business of
the Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation. If the conditions to the provisions in
the foregoing sentence are not met, the Trustee may terminate the Master
Servicer's servicing of the Mortgage Loans pursuant hereto, such termination to
be effected in the manner set forth in Sections 8.28 and 8.29.
SECTION 8.22 RESIGNATION OF MASTER SERVICER.
(a) Except as otherwise provided in Section 8.22(b) hereof,
the Master Servicer shall not resign from the obligations and duties hereby
imposed on it unless it determines that the Master Servicer's duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Trustee. No
such resignation shall become effective until a successor servicer designated by
the Trustee, with the consent of the Depositor and the Paying Agent, shall have
assumed the Master Servicer's responsibilities and obligations under this
Agreement and Rating Agency Confirmation (including with respect to any
securities rated by a Rating Agency evidencing interests in the A Notes and any
B Note) shall have been obtained. Notice of such resignation shall be given
promptly by the Master Servicer to the Trustee.
(b) The Master Servicer may resign from the obligations and
duties imposed on it, upon 30 days notice to the Trustee and the Paying Agent,
provided that (i) a successor
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servicer (w) is available, (x) has assets of at least $15,000,000, (y) is
willing to assume the obligations, responsibilities, and covenants to be
performed hereunder by the Master Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation to that herein
provided and (z) assumes all obligations under the Primary Servicing Agreement;
(ii) the Master Servicer bears all costs associated with its resignation and the
transfer of servicing; and (iii) Rating Agency Confirmation is obtained with
respect to such servicing transfer, as evidenced by a letter delivered to the
Trustee by each Rating Agency.
SECTION 8.23 ASSIGNMENT OR DELEGATION OF DUTIES BY MASTER
SERVICER. The Master Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Master Servicer (as provided in
Section 8.4) to perform and carry out any duties, covenants or obligations to be
performed and carried out by the Master Servicer hereunder or (B) assign and
delegate all of its duties hereunder; provided, however, that with respect to
clause (B), (i) the Master Servicer gives the Depositor, the Special Servicer,
the Primary Servicer, the holder of the B Note (only if such
assignment/delegation relates to the related A/B Mortgage Loan), the holder of
the RSA Companion Loan (only if such assignment/delegation relates to the Loan
Pair) and the Trustee notice of such assignment and delegation; (ii) such
purchaser or transferee accepting such assignment and delegation executes and
delivers to the Depositor and the Trustee an agreement accepting such
assignment, which contains an assumption by such Person of the rights, powers,
duties, responsibilities, obligations and liabilities of the Master Servicer,
with like effect as if originally named as a party to this Agreement and the
Primary Servicing Agreement; (iii) the purchaser or transferee has assets in
excess of $15,000,000; (iv) such assignment and delegation is the subject of a
Rating Agency Confirmation; and (v) the Depositor consents to such assignment
and delegation, such consent not be unreasonably withheld. In the case of any
such assignment and delegation in accordance with the requirements of subclause
(B) of this Section, the Master Servicer shall be released from its obligations
under this Agreement, except that the Master Servicer shall remain liable for
all liabilities and obligations incurred by it as the Master Servicer hereunder
prior to the satisfaction of the conditions to such assignment set forth in the
preceding sentence. Notwithstanding the above, the Master Servicer may appoint
the Primary Servicer and Sub-Servicers in accordance with Section 8.4 hereof.
SECTION 8.24 LIMITATION ON LIABILITY OF THE MASTER SERVICER
AND OTHERS.
(a) Neither the Master Servicer nor any of the directors,
officers, employees or agents of the Master Servicer shall be under any
liability to the holders of the Certificates, the Depositor, the Trustee, the
Fiscal Agent, the Paying Agent, the Placement Agents, the Underwriters, the
holder of the RSA Companion Loan, the holder of any B Note or the Special
Servicer for any action taken or for refraining from the taking of any action in
good faith, or using reasonable business judgment, consistent with the Servicing
Standard; provided that this provision shall not protect the Master Servicer or
any such person against any breach of a representation or warranty contained
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in its performance of duties under the
Agreement or by reason of negligent disregard of obligations and duties
hereunder. The Master Servicer and any director, officer, employee or agent of
the Master Servicer may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person (including, without
limitation, the Special Servicer) respecting any matters arising hereunder.
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The Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action which is not incidental to its duties to service the
Mortgage Loans in accordance with this Agreement; provided that the Master
Servicer may in its sole discretion undertake any such action which it may
reasonably deem necessary or desirable in order to protect the interests of the
Certificateholders and the Trustee in the Mortgage Loans, the interests of the
holder of any B Note or the interests of the holder of the RSA Companion Loan
(subject to the Special Servicer's servicing of Specially Serviced Mortgage
Loans as contemplated herein), or shall undertake any such action if instructed
to do so by the Trustee. In such event, all legal expenses and costs of such
action shall be expenses and costs of the Trust, and the Master Servicer shall
be entitled to be reimbursed therefor as Servicing Advances as provided by
Section 5.2, subject to the provisions of Section 4.4 hereof.
(b) In addition, the Master Servicer shall have no
liability with respect to, and shall be entitled to conclusively rely on as to
the truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Master Servicer and conforming to the
requirements of this Agreement. Subject to the Servicing Standard, the Master
Servicer shall have the right to rely on information provided to it by the
Special Servicer and Mortgagors, and will have no duty to investigate or verify
the accuracy thereof. Neither the Master Servicer, nor any director, officer,
employee, agent or Affiliate, shall be personally liable for any error of
judgment made in good faith by any officer, unless it shall be proved that the
Master Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Master Servicer nor any director, officer, employee, agent or
Affiliate, shall be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement.
(c) The Master Servicer shall not be obligated to incur any
liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Special Servicer, the Paying Agent, Trustee or the Fiscal Agent
in this Agreement. The Trust shall indemnify and hold harmless the Master
Servicer from any and all claims, liabilities, costs, charges, fees or other
expenses which relate to or arise from any such breach of representation,
warranty or covenant to the extent the Master Servicer is unable to recover such
amounts from the Person in breach.
(d) Except as otherwise specifically provided herein:
(i) the Master Servicer may rely, and shall be
protected in acting or refraining from acting upon, any resolution, officer's
certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, financial
statement, agreement, appraisal, bond or other document (in electronic or paper
format) reasonably believed or in good faith believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(ii) the Master Servicer may consult with counsel,
and any written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
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(iii) the Master Servicer shall not be personally
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement; and
(iv) the Master Servicer, in preparing any reports
hereunder, may rely, and shall be protected in acting or refraining from acting
upon any information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed by it to
be genuine and provided by any Mortgagor or manager of a Mortgaged Property.
(e) The Master Servicer and any director, officer, employee
or agent of the Master Servicer shall be indemnified by the Trustee, the Fiscal
Agent, the Paying Agent and the Special Servicer, as the case may be, and held
harmless against any loss, liability or expense including reasonable attorneys'
fees incurred in connection with any legal action relating to the Trustee's,
Fiscal Agent's, the Paying Agent's or the Special Servicer's, as the case may
be, respective willful misfeasance, bad faith or negligence in the performance
of its respective duties hereunder or by reason of negligent disregard of its
respective duties hereunder, other than any loss, liability or expense incurred
by reason of willful misfeasance, bad faith or negligence in the performance of
any of the Master Servicer's duties hereunder or by reason of negligent
disregard of the Master Servicer's obligations and duties hereunder. The Master
Servicer shall immediately notify the Trustee, the Paying Agent and the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Mortgage Loans entitling the Master Servicer to indemnification hereunder,
whereupon the Trustee, the Paying Agent, or the Special Servicer, in each case,
to the extent the claim is related to its respective willful misfeasance, bad
faith or negligence, may assume the defense of any such claim (with counsel
reasonably satisfactory to the Master Servicer) and pay all expenses in
connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Trustee, the Paying Agent
and the Special Servicer shall not affect any rights that the Master Servicer
may have to indemnification under this Agreement or otherwise, unless the
Trustee's, the Paying Agent's or the Special Servicer's defense of such claim is
materially prejudiced thereby. Such indemnity shall survive the termination of
this Agreement or the resignation or removal of the Master Servicer hereunder.
Any payment hereunder made by the Trustee, the Paying Agent, the Fiscal Agent or
the Special Servicer pursuant to this paragraph to the Master Servicer shall be
paid from the Trustee's, the Paying Agent's, Fiscal Agent's or Special
Servicer's own funds, without reimbursement from the Trust therefor except to
the extent achieved through subrogation as provided in this Agreement. Any
expenses incurred or indemnification payments made by the Trustee, the Paying
Agent, the Fiscal Agent or the Special Servicer shall be reimbursed by the party
so paid, if a court of competent jurisdiction makes a final judgment that the
conduct of the Trustee, the Paying Agent, the Fiscal Agent or the Special
Servicer, as the case may be, was (x) not culpable or (y) found to not have
acted with willful misfeasance, bad faith or negligence.
SECTION 8.25 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Master Servicer and any director, officer, employee
or agent of the Master Servicer (the "Master Servicer Indemnified Parties")
shall be indemnified and held harmless by the Trust out of collections on, and
other proceeds of, the Mortgage Loans, the RSA Companion Loan and any B Notes,
as provided in the following paragraph, against any and all
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claims, losses, penalties, fines, forfeitures, legal fees and related costs,
judgments and any other costs, liabilities, fees and expenses (collectively,
"Master Servicer Losses") incurred in connection with any legal action relating
to this Agreement, any Mortgage Loans, the RSA Companion Loan, any B Notes, any
REO Property or the Certificates or any exercise of any right under this
Agreement reasonably requiring the use of counsel or the incurring of expenses
other than any loss, liability or expense incurred by reason of the Master
Servicer's willful misfeasance, bad faith or negligence in the performance of
duties hereunder.
Except as provided in the following sentence, indemnification
for Master Servicer Losses described in the preceding paragraph (including in
the case of such Master Servicer Losses that relate primarily to the
administration of the Trust, to any REMIC formed hereunder or to any
determination respecting the amount, payment or avoidance of any tax under the
REMIC provisions of the Code or the actual payment of any REMIC tax or expense)
shall be paid out of collections on, and other proceeds of, the Mortgage Loans
as a whole but not out of collections on, or other proceeds of, the RSA
Companion Loan or any B Note. In the case of any such Master Servicer Losses
that do not relate primarily to the administration of the Trust, to any REMIC
formed hereunder or to any determination respecting the amount, payment or
avoidance of any tax under the REMIC provisions of the Code or the actual
payment of any REMIC tax or expense:
(1) if such Master Servicer Losses relate to the Loan Pair,
then such indemnification shall be paid (x) first, out of collections on, and
other proceeds of, the RSA Pari Passu Loan and the RSA Companion Loan, in the
relative proportions provided for in the applicable Intercreditor Agreement and
(y) if the collections and proceeds described in subclause (x) of this clause
(1) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the Mortgage Loans as a whole; and
(2) if such Master Servicer Losses relate to any A/B Mortgage
Loan, then such indemnification shall be paid (x) first, if and to the extent
permitted under the applicable Intercreditor Agreement, out of collections on,
and other proceeds of, the B Note or B Notes related to such A/B Mortgage Loan,
(y) if the collections and proceeds described in subclause (x) of this clause
(2) are not sufficient to so indemnify the Master Servicer Indemnified Parties
on a current basis, then the balance of such indemnification shall be paid out
of collections on, and other proceeds of, the RSA Pari Passu Loan and the RSA
Companion Loan, in the relative proportions provided for in the Loan Pair
Intercreditor Agreement and (z) if the aggregate collections and proceeds
described in subclauses (x) and (y) of this clause (2) are not sufficient to so
indemnify the Master Servicer Indemnified Parties on a current basis, then the
balance of such indemnification shall be paid out of collections on, and other
proceeds of, the Mortgage Loans as a whole.
The Master Servicer shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Master Servicer) and out of the
Trust pay all expenses in connection therewith, including counsel fees, and out
of the Trust promptly pay, discharge and satisfy any judgment or decree which
may be entered against it or them in respect of such claim. The indemnification
provided herein shall survive the termination of this Agreement. The Trustee,
the Paying Agent or the Master Servicer shall promptly make from the Certificate
Account (and, if and to the extent that the amount due shall be paid from
collections on, and
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other proceeds of, the RSA Companion Loan or any B Note, as described above, out
of the RSA Companion Loan Custodial Account or the related A/B Loan Custodial
Account) any payments certified by the Master Servicer to the Trustee and the
Paying Agent as required to be made to the Master Servicer pursuant to this
Section 8.25.
(b) The Master Servicer agrees to indemnify the Trustee,
the Fiscal Agent, the Special Servicer, the Trust, the Depositor, the Paying
Agent, and any director, officer, employee, agent or Controlling Person thereof,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from
or as a result of the willful misfeasance, bad faith or negligence in the
performance of any of the Master Servicer's duties hereunder or by reason of
negligent disregard of the Master Servicer's obligations and duties hereunder
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations), and if
in any such situation the Master Servicer is replaced, the parties hereto agree
that the amount of such claims, losses, penalties, fines, legal fees and related
costs, judgments, and other costs, liabilities, fees and expenses shall at least
equal the incremental costs, if any, of retaining a successor servicer. The
Trustee, the Fiscal Agent, the Special Servicer, the Paying Agent or the
Depositor, as applicable, shall immediately notify the Master Servicer if a
claim is made by any Person with respect to this Agreement or the Mortgage Loans
entitling the Trustee, the Fiscal Agent, the Depositor, the Special Servicer,
the Paying Agent or the Trust to indemnification under this Section 8.25(b),
whereupon the Master Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Trustee, the Fiscal Agent, the Special
Servicer, the Paying Agent or the Depositor, as applicable) and pay all expenses
in connection therewith, including counsel fees, and promptly pay, discharge and
satisfy any judgment or decree which may be entered against it or them in
respect of such claim. Any failure to so notify the Master Servicer shall not
affect any rights the Trustee, the Fiscal Agent, the Special Servicer, the
Depositor, the Paying Agent or the Trust may have to indemnification under this
Agreement or otherwise, unless the Master Servicer's defense of such claim is
materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the resignation or termination of the
Master Servicer, the Fiscal Agent, the Special Servicer, the Paying Agent and
the Trustee. Any expenses incurred or indemnification payments made by the
Master Servicer shall be reimbursed by the party so paid, if a court of
competent jurisdiction makes a final, non-appealable judgment that the conduct
of the Master Servicer was not culpable or that the Master Servicer did not act
with willful misfeasance, bad faith or negligence.
(c) The Primary Servicer and any director, officer,
employee or agent thereof shall be indemnified by the Trust and held harmless
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to this Agreement, its
related Primary Servicing Agreement (but only if, and to the extent that, the
Master Servicer would have been entitled to indemnification therefor under this
Agreement if it were directly servicing the Mortgage Loan), any Mortgage Loans,
any REO Property or the Certificates or any exercise of any right under this
Agreement or its related Primary Servicing Agreement (limited as set forth
above) reasonably requiring the use of counsel or the incurring of expenses
other than any loss, liability or expense incurred by reason of a Primary
Servicer's willful misfeasance, bad faith or negligence in the performance of
duties thereunder. The applicable Primary Servicer shall
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assume the defense of any such claim (with counsel reasonably satisfactory to
the applicable Primary Servicer) and out of the Trust pay all expenses in
connection therewith, including counsel fees, and out of the Trust promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the related Primary Servicing Agreement.
The Trustee, the Paying Agent or the Master Servicer shall promptly make from
the Certificate Account any payments certified by a Primary Servicer to the
Trustee and the Paying Agent as required to be made to such Primary Servicer
pursuant to this Section 8.25.
(d) The LB-UBS Series 2003-C5 Master Servicer and any
director, officer, employee or agent of the LB-UBS Series 2003-C5 Master
Servicer shall be indemnified by the Trust and held harmless against the Trust's
pro rata share of any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to the LB-UBS
Series 2003-C5 Pooling and Servicing Agreement and this Agreement, and relating
to the Xxxx Xxxxxxx Tower Pari Passu Loan (but excluding any such losses
allocable to the Xxxx Xxxxxxx Tower Companion Loans), reasonably requiring the
use of counsel or the incurring of expenses other than any losses incurred by
reason of the LB-UBS Series 2003-C5 Master Servicer's willful misfeasance, bad
faith or negligence in the performance of its duties under the LB-UBS Series
2003-C5 Pooling and Servicing Agreement.
(e) The Primary Servicer agrees to indemnify the Trustee,
the Fiscal Agent, the Special Servicer, the Trust, the Depositor, the Paying
Agent, and any director, officer, employee, agent or Controlling Person thereof,
and hold them harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses that the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent and the Trust may sustain arising from
or as a result of the willful misfeasance, bad faith or negligence in the
performance of any of the applicable Primary Servicer's duties under this
Agreement, its related Primary Servicing Agreement or by reason of negligent
disregard of the applicable Primary Servicer's obligations and duties thereunder
(including a breach of such obligations a substantial motive of which is to
obtain an economic advantage from being released from such obligations), and if
in any such situation the applicable Primary Servicer is replaced, the parties
hereto agree that the amount of such claims, losses, penalties, fines, legal
fees and related costs, judgments, and other costs, liabilities, fees and
expenses shall at least equal the incremental costs, if any, of retaining a
successor primary servicer. The Trustee, the Fiscal Agent, the Special Servicer,
the Paying Agent or the Depositor, as applicable, shall immediately notify the
applicable Primary Servicer if a claim is made by any Person with respect to
this Agreement, the related Primary Servicing Agreement or the Mortgage Loans
entitling the Trustee, the Fiscal Agent, the Depositor, the Special Servicer,
the Paying Agent or the Trust to indemnification under this Section 8.25(d),
whereupon the applicable Primary Servicer shall assume the defense of any such
claim (with counsel reasonably satisfactory to the Trustee, the Fiscal Agent,
the Special Servicer, the Paying Agent or the Depositor, as applicable) and pay
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. Any failure to so notify the applicable Primary
Servicer shall not affect any rights the Trustee, the Fiscal Agent, the Special
Servicer, the Depositor, the Paying Agent or the Trust may have to
indemnification under this Agreement, the related Primary Servicing Agreement or
otherwise, unless the Primary Servicer's defense of such claim is
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materially prejudiced thereby. The indemnification provided herein shall survive
the termination of this Agreement and the Primary Servicing Agreement and the
resignation or termination of the Master Servicer, the Fiscal Agent, the Special
Servicer, the Paying Agent and the Trustee. Any expenses incurred or
indemnification payments made by a Primary Servicer shall be reimbursed by the
party so paid, if a court of competent jurisdiction makes a final,
non-appealable judgment that the conduct of such Primary Servicer was not
culpable or that such Primary Servicer did not act with willful misfeasance, bad
faith or negligence.
SECTION 8.26 EXCHANGE ACT REPORTING
(a) The Master Servicer, the Special Servicer, the Paying
Agent, the Trustee and the Fiscal Agent shall reasonably cooperate with the
Depositor in connection with the Trust's satisfaction of its reporting
requirements under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Within 15 days after each Distribution Date, the Paying Agent
shall prepare, execute and file on behalf of the Trust any Forms 8-K customary
for similar securities as required by the Exchange Act and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder; provided that the Depositor shall file the initial Form 8-K in
connection with the issuance of the Certificates. The Paying Agent shall file
each Form 8-K with a copy of the related Monthly Certificateholders Report
attached thereto. If the Depositor directs that any other attachments are to be
filed with any Form 8-K, such attachments shall be delivered to the Paying Agent
in XXXXX-compatible form or as otherwise agreed upon by the Paying Agent and the
Depositor, at the Depositor's expense, and any necessary conversion to
XXXXX-compatible format will be at the Depositor's expense. Prior to March 30th
of each year (or such earlier date as may be required by the Exchange Act and
the rules and regulations of the Commission), the Paying Agent shall prepare and
file on behalf of the Trust a Form 10-K, in substance as required by applicable
law or applicable interpretations thereof of the staff of the Commission. Such
Form 10-K shall include as exhibits each annual statement of compliance
described under Sections 8.12 and 9.18 and each accountant's report described
under Sections 8.13 and 9.19, in each case to the extent they have been timely
delivered to the Paying Agent. If they are not so timely delivered, the Paying
Agent shall file an amended Form 10-K including such documents as exhibits
reasonably promptly after they are delivered to the Paying Agent. Each Form 10-K
shall also include any Xxxxxxxx-Xxxxx Certification required to be included
therewith, as described in paragraph (b) of this Section 8.26. Neither the
Paying Agent nor the Master Servicer shall have any liability with respect to
any failure to properly prepare, execute or file such periodic reports resulting
from the Master Servicer's or the Paying Agent's inability or failure to obtain
any information not resulting from its own negligence, bad faith or willful
misconduct. Prior to January 30 of the first year in which the Paying Agent is
able to do so under applicable law, the Paying Agent shall file a Form 15
relating to the automatic suspension of reporting in respect of the Trust under
the Exchange Act.
(b) The Form 10-K shall include any certification (the
"Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission's staff) and a copy of such Xxxxxxxx-Xxxxx Certification shall be
provided to the Rating Agencies. The Special Servicer and the Paying Agent
(each, a "Performing Party") shall provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a
"Performance Certification"), in the form attached hereto as Exhibit CC, on
which the Certifying Person, the entity for which the
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Certifying Person acts as an officer (if the Certifying Person is an
individual), and such entity's officers, directors and Affiliates (collectively
with the Certifying Person, "Certification Parties") can rely. The Master
Servicer shall serve as the Certifying Person on behalf of the Trust. In
addition, if the Performing Party is the Special Servicer, such Performing Party
shall execute a reasonable reliance certificate to enable the Certification
Parties to rely upon each annual statement of compliance provided pursuant to
Section 9.18, and shall include a certification that each such annual statement
of compliance discloses any deficiencies or defaults described to the certified
public accountants of such Performing Party to enable such accountants to render
the certificate provided for in Section 9.19. In the event any Performing Party
is terminated or resigns pursuant to the terms of this Agreement, such
Performing Party shall provide a Performance Certification to the Certifying
Person pursuant to this Section 8.26(b) with respect to the period of time it
was subject to this Agreement.
(c) Each Performing Party shall indemnify and hold harmless
each Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.26 or (ii) negligence, bad faith or willful misconduct on the
part of the Performing Party in the performance of such obligations.
(d) Nothing contained in this Section 8.26 shall be
construed to require any party to this Agreement other than the Master Servicer,
or any of such party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx
Certification. The failure of any party to this Agreement other than the Master
Servicer, or any of such party's officers, to execute any Form 10-K or any
Xxxxxxxx-Xxxxx Certification shall not be regarded as a breach by such party of
any of its obligations under this Agreement. This Section 8.26 may be amended by
the parties hereto pursuant to Section 13.3 for purposes of complying with the
Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the Certifying Person
without any Opinions of Counsel, Officer's Certificates, Rating Agency
Confirmations or the consent of any Certificateholder, notwithstanding anything
to the contrary contained in this Agreement.
SECTION 8.27 COMPLIANCE WITH REMIC PROVISIONS. The Master
Servicer shall act in accordance with this Agreement and the REMIC Provisions
and related provisions of the Code in order to create or maintain the status of
the REMICs created hereby as REMICs under the Code. The Master Servicer shall
take no action or cause any REMIC Pool to take any action that could (i)
endanger the status of any REMIC Pool as a REMIC under the Code or (ii) result
in the imposition of a tax upon any REMIC Pool (including, but not limited to,
the tax on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Trustee shall
have received a Nondisqualification Opinion (at the expense of the party seeking
to take such action) to the effect that the contemplated action will not
endanger such status or result in the imposition of such tax. The Master
Servicer shall comply with the provisions of Article XII hereof.
SECTION 8.28 TERMINATION. The obligations and
responsibilities of the Master Servicer created hereby (other than the
obligation of the Master Servicer to make payments to the Paying Agent as set
forth in Section 8.29 and the obligations of the Master Servicer to the Trustee,
the Paying Agent, the Fiscal Agent, the Special Servicer and the Trust) shall
terminate (i) on the date which is the later of (A) the final payment or other
liquidation of the last Mortgage
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Loan remaining outstanding (and final distribution to the Certificateholders) or
(B) the disposition of all REO Property (and final distribution to the
Certificateholders), (ii) if an Event of Default described in clauses
8.28(a)(iii), (iv) or (xi) has occurred, 60 days following the date on which the
Trustee or Depositor gives written notice to the Master Servicer that the Master
Servicer is terminated or (iii) if an Event of Default described in clauses
8.28(a)(i), (ii), (vii), (viii), (ix) or (x) has occurred, immediately upon the
date on which the Trustee or the Depositor gives written notice to the Master
Servicer that the Master Servicer is terminated. After any Event of Default, the
Trustee (i) may elect to terminate the Master Servicer by providing such notice,
and (ii) shall provide such notice if holders of Certificates representing more
than 25% of the Aggregate Certificate Balance of all Certificates so direct the
Trustee.
(a) "Event of Default," wherever used herein, means any one
of the following events:
(i) any failure by the Master Servicer to remit to
the Paying Agent or otherwise make any payment required to be remitted by the
Master Servicer under the terms of this Agreement, including any required
Advances; or
(ii) any failure by the Master Servicer to make a
required deposit to the Certificate Account which continues unremedied for one
Business Day following the date on which such deposit was first required to be
made; or
(iii) any failure on the part of the Master Servicer
duly to observe or perform in any material respect any other of the duties,
covenants or agreements on the part of the Master Servicer contained in this
Agreement which continues unremedied for a period of 30 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor or the Trustee;
provided, however, that if the Master Servicer certifies to the Trustee and the
Depositor that the Master Servicer is in good faith attempting to remedy such
failure, such cure period will be extended to the extent necessary to permit the
Master Servicer to cure such failure; provided, further that such cure period
may not exceed 90 days; or
(iv) any breach of the representations and warranties
contained in Section 8.20 hereof that materially and adversely affects the
interest of any holder of any Class of Certificates and that continues
unremedied for a period of 30 days after the date on which notice of such
breach, requiring the same to be remedied, shall have been given to the Master
Servicer by the Depositor or the Trustee, provided, however, that if the Master
Servicer certifies to the Trustee and the Depositor that the Master Servicer is
in good faith attempting to remedy such breach, such cure period will be
extended to the extent necessary to permit the Master Servicer to cure such
breach; provided, further that such cure period may not exceed 90 days; or
(v) Reserved
(vi) Reserved
(vii) a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
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marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(viii) the Master Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Master Servicer or of
or relating to all or substantially all of its property; or
(ix) the Master Servicer shall admit in writing its
inability to pay its debts generally as they become due, file a petition to take
advantage of any applicable bankruptcy, insolvency or reorganization statute,
make an assignment for the benefit of its creditors, voluntarily suspend payment
of its obligations, or take any corporate action in furtherance of the
foregoing; or
(x) the Master Servicer is removed from S&P's
approved master servicer list and is not reinstated within 60 days and the
ratings then assigned by S&P to any Classes of Certificates are downgraded,
qualified or withdrawn (including, without limitation, being placed on "negative
credit watch") in connection with such removal; or
(xi) the Master Servicer receives actual knowledge
that Xxxxx'x has (i) qualified, downgraded or withdrawn its rating or ratings of
one or more Classes of Certificates, or (ii) placed one or more Classes of
Certificates on "watch status" in contemplation of a rating downgrade or
withdrawal (and such "watch status" placement shall not have been withdrawn by
Xxxxx'x within 60 days of the date that the Master Servicer obtained such actual
knowledge) and, in the case of either of clauses (i) or (ii), citing servicing
concerns with the Master Servicer as the sole or material factor in such rating
action.
(b) Notwithstanding the foregoing, if the Event of Default
of the Master Servicer occurs primarily by reason of the occurrence of a
"Primary Servicing Default" (as hereinafter defined) (that is, it would not have
occurred but for (a) the occurrence of such Primary Servicing Default and (b)
the Master Servicer failure to cause the cure of such event) and the Trustee (or
the Trustee at the direction of the Certificateholders pursuant to Section 8.28
hereof) elects to terminate the Master Servicer, then Xxxxx Fargo Bank, National
Association shall have the right to elect that the successor Master Servicer,
upon its succession, enter into a primary servicing agreement with Xxxxx Fargo
Bank, National Association with respect to all Mortgage Loans as to which that
Primary Servicing Default occurred, so long as the initial Master Servicer is on
the approved list of commercial mortgage loan servicers maintained by S&P, and
such agreement shall be substantially in the form of Exhibit G-1 hereto (but as
if Xxxxx Fargo Bank, National Association were the Primary Servicer or
Sub-Servicer thereunder and with applicable servicing fees and excess fees as
specified on the Mortgage Loan Schedule); and, in the case of an agreement in
the form of Exhibit G-1, thereupon Xxxxx Fargo Bank, National Association shall
be deemed to have been granted the rights and deemed to have assumed the
obligations granted to or imposed on the "Primary Servicer" hereunder as to such
Mortgage Loans (and under such Primary Servicing Agreement). For purposes of the
preceding sentence, a "Primary Servicing Default" means an "event of default" of
the Primary Servicer under the Primary Servicing Agreement of Principal Global
Investors, LLC or of the related sub-servicer under the related sub-servicing
agreement (in effect as of the date hereof) of GMAC Commercial
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Mortgage Corporation only in its capacity as Sub-Servicer under the related
sub-servicing agreement. If the Master Servicer is terminated based upon an
Event of Default set forth in clause (i) (as to the obligation to make P&I
Advances), (x) or (xi) of Section 8.28(a), then the Master Servicer shall have
the right to enter into a primary servicing agreement with the successor Master
Servicer with respect to all Mortgage Loans that are not then subject to a
Primary Servicing Agreement, so long as the terminated Master Servicer is on the
approved list of commercial mortgage loan servicers maintained by S&P.
SECTION 8.29 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 8.28(a), specifying the Master Servicer Remittance Date upon which the
final transfer by the Master Servicer to the Paying Agent shall be made, shall
be given promptly in writing by the Master Servicer to the Paying Agent no later
than the later of (i) five Business Days after the final payment or other
liquidation of the last Mortgage Loan or (ii) the sixth day of the month of such
final distribution. Upon any such termination, the duties of the Master Servicer
(other than the obligation of the Master Servicer to pay to the Paying Agent the
amounts remaining in the Certificate Account as set forth below and the
obligations of the Master Servicer to the Trustee and the Trust and the Fiscal
Agent as provided herein) shall terminate and the Master Servicer shall transfer
to the Paying Agent the amounts remaining in the Certificate Account (and any
sub-account) after making the withdrawals permitted to be made pursuant to
Section 5.2 and shall thereafter terminate the Certificate Account and any other
account or fund maintained with respect to the Mortgage Loans.
(b) On the date specified in a written notice of
termination given to the Master Servicer pursuant to clause (ii) of Section
8.28(a), or on the date on which a written notice of termination is given to the
Master Servicer pursuant to clause (iii) of Section 8.28(a) all authority, power
and rights of the Master Servicer under this Agreement, whether with respect to
the Mortgage Loans or otherwise, shall terminate (except for any rights relating
to unpaid servicing compensation or unreimbursed Advances or, if the terminated
Master Servicer is Xxxxx Fargo Bank, National Association, its rights to the
Excess Servicing Fee); provided that in no event shall the termination of the
Master Servicer be effective until a successor servicer shall have succeeded the
Master Servicer as successor servicer, subject to approval by the Rating
Agencies, notified the Master Servicer of such designation and such successor
servicer shall have assumed the Master Servicer's obligations and
responsibilities hereunder and under the Primary Servicing Agreement, as set
forth in an agreement substantially in the form hereof, with respect to the
Mortgage Loans and, in the circumstances set forth in the last sentence of
Section 8.28(b), entered into a new primary servicing agreement with the
predecessor Master Servicer in substantially the same form as Exhibit AA
attached hereto. Except as provided in the next sentence, the Trustee may not
succeed the Master Servicer as servicer until and unless it has satisfied the
provisions that would apply to a Person succeeding to the business of the Master
Servicer pursuant to Section 8.22(b) hereof. Notwithstanding the foregoing
sentence, in the event that the Master Servicer is terminated as a result of an
event described in Section 8.28(a)(vii), 8.28(a)(viii) or 8.28(a)(ix), the
Trustee shall act as successor servicer immediately upon delivery of a notice of
termination to the Master Servicer and shall use commercially reasonable efforts
within 90 days of assuming the duties of the Master Servicer, either to satisfy
the conditions of Section 8.22(b) hereof or to transfer the duties of the Master
Servicer to a successor servicer who has satisfied such conditions. The Trustee
is hereby authorized and
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empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents or
otherwise. The Master Servicer agrees to cooperate with the Trustee, the Paying
Agent and the Fiscal Agent in effecting the termination of the Master Servicer's
responsibilities and rights hereunder as Master Servicer including, without
limitation, notifying Mortgagors of the assignment of the servicing function and
providing the Trustee all documents and records in electronic or other form
reasonably requested by it to enable the successor servicer designated by the
Trustee to assume the Master Servicer's functions hereunder and to effect the
transfer to such successor for administration by it of all amounts which shall
at the time be or should have been deposited by the Master Servicer in the
Certificate Account and any other account or fund maintained or thereafter
received with respect to the Mortgage Loans.
(c) If the Master Servicer receives a written notice of
termination pursuant to clause (ii) of Section 8.28(a) relating solely to an
Event of Default set forth in clause (x) or (xi) of Section 8.28(a), and if the
Master Servicer provides the Trustee with the appropriate "request for proposal"
materials within five Business Days after receipt of such written notice of
termination, then the Trustee shall promptly thereafter (using such "request for
proposal" materials provided by the Master Servicer) solicit good faith bids for
the rights to service the Mortgage Loans under this Agreement from at least
three but no more than five Qualified Bidders or, if three Qualified Bidders
cannot be located, then from as many persons as the Trustee can determine are
Qualified Bidders. At the Trustee's request, the Master Servicer shall supply
the Trustee with the names of Persons from whom to solicit such bids. In no
event shall the Trustee be responsible if less than three Qualified Bidders
submit bids for the right to service the Mortgage Loans under this Agreement.
(d) Each bid proposal shall require any Successful Bidder,
as a condition of its bid, to enter into this Agreement as successor Master
Servicer, and to agree to be bound by the terms hereof and the terms of the
Primary Servicing Agreement, not later than 30 days after termination of the
Master Servicer hereunder. The Trustee shall select the Qualified Bidder with
the highest cash bid (or such other Qualified Bidder as the Master Servicer may
direct) (the "Successful Bidder") to act as successor Master Servicer hereunder.
The Trustee shall direct the Successful Bidder to enter into this Agreement as
successor Master Servicer pursuant to the terms hereof, and in connection
therewith to deliver the amount of the Successful Bidder's cash bid to the
Trustee by wire transfer of immediately available funds to an account specified
by the Trustee no later than 10:00 a.m. New York City time on the date specified
for the assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing
rights hereunder to and by the Successful Bidder and receipt of such cash bid,
the Trustee shall remit or cause to be remitted to the terminated Master
Servicer the amount of such cash bid received from the Successful Bidder (net of
all out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Master Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
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(f) If the Successful Bidder has not entered into this
Agreement as successor Master Servicer within 30 days after the termination of
the Master Servicer hereunder or no Successful Bidder was identified within such
30-day period, the Trustee shall have no further obligations under Section
8.29(c) and may act or may select another successor to act as Master Servicer
hereunder in accordance with Section 8.29(b).
(g) Notwithstanding anything to the contrary in this
Section 8.29, the successor master servicer must assume all of the obligations
of the terminated Master Servicer under the Primary Servicing Agreement (and the
subservicing agreement (in effect as of the date hereof) of GMAC Commercial
Mortgage Corporation) as a condition precedent to its becoming Master Servicer
hereunder.
For purposes of the foregoing provisions of Section 8.29(c),
the phrase "rights to service" shall be construed to exclude those servicing
rights and duties as to which Xxxxx Fargo Bank, National Association has made an
election for the execution of a primary servicing agreement as contemplated by
Section 8.28(b).
SECTION 8.30 OPERATING ADVISER CONTACT WITH MASTER SERVICER
AND SPECIAL SERVICER.
No less often than on a monthly basis or as agreed upon by the
Master Servicer and the Operating Adviser, each of the Master Servicer and the
Special Servicer shall, without charge, make a Servicing Officer available to
answer questions from the Operating Adviser regarding the performance and
servicing of the Mortgage Loans and/or REO Properties for which the Master
Servicer or the Special Servicer, as the case may be, is responsible. The
Primary Servicer shall make a Servicing Officer available on any such call to
answer questions from the Operating Adviser regarding the Mortgage Loans and/or
REO Properties that it services.
ARTICLE IX
ADMINISTRATION AND SERVICING OF SPECIALLY SERVICED MORTGAGE LOANS
BY SPECIAL SERVICER
SECTION 9.1 DUTIES OF SPECIAL SERVICER.
(a) Subject to the express provisions of this Agreement,
for and on behalf of the Trust and for the benefit of the Certificateholders as
a whole, and, solely as it relates to any A/B Mortgage Loan, for the benefit of
the holder of the related B Note and, solely as it relates to the Loan Pair, for
the benefit of the holder of the RSA Companion Loan, the Special Servicer shall
service the Specially Serviced Mortgage Loans and manage the related REO
Properties in accordance with the provisions of this Agreement and the Servicing
Standard. Certain of the provisions of this Article IX make explicit reference
to their applicability to Mortgage Loans, the RSA Companion Loan and any B Note;
notwithstanding such explicit references, references in this Article IX to
"Mortgage Loans" shall be construed, unless otherwise specified, to refer also
to such B Note and such RSA Companion Loan (but any other terms that are defined
in Article I and used in this Article IX shall be construed according to such
definitions without regard to this sentence).
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(b) The Special Servicer shall cooperate with the Master
Servicer and provide the Master Servicer with the information reasonably
requested by the Master Servicer, in writing, to the extent required to allow
the Master Servicer to perform its servicing obligations with respect to the
Specially Serviced Mortgage Loans hereunder; provided, however, that (i) the
Special Servicer shall not be required to produce any ad hoc reports or incur
any unusual expense or effort in connection therewith and (ii) if the Special
Servicer elects to provide such ad hoc reports, the Special Servicer may require
the Master Servicer to pay a reasonable fee to cover the costs of the
preparation thereof. The Special Servicer's obligations with respect to the
servicing of any Specially Serviced Mortgage Loan and any related REO Properties
shall terminate when such Specially Serviced Mortgage Loan has become a
Rehabilitated Mortgage Loan, unless and until another Servicing Transfer Event
with respect to such Rehabilitated Mortgage Loan occurs.
(c) The Special Servicer shall send a written notice to the
Master Servicer, the Operating Adviser and the Paying Agent within two Business
Days after becoming aware that a Mortgage Loan has become a Rehabilitated
Mortgage Loan, which notice shall identify the applicable Mortgage Loan. Upon
the receipt of such notice by the Master Servicer and the Paying Agent, such
Mortgage Loan shall become a Rehabilitated Mortgage Loan and will be serviced by
the Master Servicer.
(d) Upon the occurrence of a Servicing Transfer Event with
respect to a Mortgage Loan and upon the reasonable request of the Special
Servicer, the Master Servicer shall xxxx its records for such Mortgage Loan to
cause any monthly statements for amounts due on such Mortgage Loan to be sent
thereafter to the Special Servicer rather than the related Mortgagor. Upon
receipt of any such monthly statement, the Special Servicer shall, within two
Business Days, advise the Master Servicer of any changes to be made, and return
the monthly statement to the Master Servicer. The Master Servicer shall
thereafter promptly send the corrected monthly statement to the Mortgagor. If a
Mortgage Loan becomes a Rehabilitated Mortgage Loan, the Master Servicer shall
send the monthly statement to the Mortgagor as it did before such Mortgage Loan
became a Specially Serviced Mortgage Loan.
(e) All amounts collected by the Master Servicer with
respect to a Specially Serviced Mortgage Loan (other than a Mortgage Loan that
has become an REO Mortgage Loan and a Specially Serviced Mortgage Loan that is a
B Note or the RSA Companion Loan) shall be deposited in the Certificate Account,
and all amounts collected by the Master Servicer with respect to a Specially
Serviced Mortgage Loan that is a B Note shall be deposited in the related A/B
Loan Custodial Account and all amounts collected by the Master Servicer with
respect to a Specially Serviced Mortgage Loan that is the RSA Companion Loan
shall be deposited in the RSA Companion Loan Custodial Account. The Master
Servicer shall within three Business Days after receipt of any such payment,
notify the Special Servicer of the receipt of such payment and the amount
thereof. The Special Servicer shall, within one Business Day thereafter,
instruct the Master Servicer in writing how to apply such payment (with the
application of such payments to be made in accordance with the related Mortgage
Loan documents (including the related Intercreditor Agreement, if any) or in
accordance with this Agreement, as applicable).
(f) After the occurrence of any Servicing Transfer Event
with respect to any one or more Mortgage Loans that are the subject of any
Environmental Insurance Policy, (i) the Special Servicer shall monitor the dates
by which any claim must be made or action must be taken under such Environmental
Insurance Policy to achieve the payment of all amounts
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thereunder to which the Trust is entitled in the event the Special Servicer has
actual knowledge of any event giving rise to a claim under such Environmental
Insurance Policy (an "Insured Environmental Event") and (ii) if the Special
Servicer has actual knowledge of an Insured Environmental Event with respect to
such Mortgage Loan, the Special Servicer shall take reasonable actions as are in
accordance with the Servicing Standard and the terms and conditions of the
related Environmental Insurance Policy to make a claim thereunder and achieve
the payment of all amounts to which the Trust is entitled thereunder. Any legal
fees or other out-of-pocket costs incurred in accordance with the Servicing
Standard in connection with any such claim shall be paid by, and reimbursable
to, the Master Servicer (of if applicable, the Special Servicer) as a Servicing
Advance. All extraordinary expenses (but not ordinary and routine or anticipated
expenses) incurred by the Special Servicer in fulfilling its obligations under
this Section 9.1 shall be paid by the Trust.
SECTION 9.2 FIDELITY BOND AND ERRORS AND OMISSIONS INSURANCE
POLICY OF SPECIAL SERVICER. The Special Servicer, at its expense, shall maintain
in effect a Servicer Fidelity Bond and a Servicer Errors and Omissions Insurance
Policy. The Servicer Errors and Omissions Insurance Policy and Servicer Fidelity
Bond shall be issued by a Qualified Insurer (unless the Special Servicer self
insures as provided below) and be in form and amount consistent with the
Servicing Standard. In the event that any such Servicer Errors and Omissions
Insurance Policy or Servicer Fidelity Bond ceases to be in effect, the Special
Servicer shall obtain a comparable replacement policy or bond from an insurer or
issuer meeting the requirements set forth above as of the date of such
replacement. So long as the long-term rating of the Special Servicer is not less
than two rating categories (ignoring pluses or minuses) lower than the highest
rating of the Certificates, but in any event not less than "Aa2" as rated by
Xxxxx'x and "BBB" as rated by S&P, the Special Servicer may self-insure for the
Servicer Fidelity Bond and the Servicer Error and Omissions Insurance Policy.
SECTION 9.3 SUB-SERVICERS. The Special Servicer shall have
the right to use a Sub-Servicer on the same terms and conditions as those set
forth in Section 8.4 for a Sub-Servicer of the Master Servicer. The Special
Servicer shall notify the Master Servicer, Trustee and solely as it relates to
any A/B Mortgage Loan, the holder of the related B Note, and solely as it
relates to the Loan Pair, the holder of the RSA Companion Loan, of the
appointment of any Sub-Servicer of the Special Servicer.
SECTION 9.4 SPECIAL SERVICER GENERAL POWERS AND DUTIES.
(a) Subject to the other terms and provisions of this
Agreement (and, in the case of the Xxxx Xxxxxxx Tower Pari Passu Loan, subject
to the servicing of the Xxxx Xxxxxxx Tower Pari Passu Loan by the LB-UBS Series
2003-C5 Master Servicer and the LB-UBS Series 2003-C5 Special Servicer), the
Special Servicer is hereby authorized and empowered when the Special Servicer
believes it appropriate in accordance with the Servicing Standard, to take any
and all the actions with respect to Specially Serviced Mortgage Loans which the
Master Servicer may perform as set forth in Section 8.3(a), including (i) to
execute and deliver, on behalf of itself or the Trust (or holder of a B Note or
the RSA Companion Loan, as applicable), any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the Specially Serviced Mortgage Loans
and with respect to the related REO Properties and (ii) to effectuate
foreclosure or other conversion of the
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ownership of any REO Property securing a Mortgage Loan. The Trustee shall
execute on the Closing Date a Power of Attorney in the form of Exhibit S-2
hereto and shall furnish the Special Servicer from time to time, upon request,
with any additional powers of attorney of the Trust, empowering the Special
Servicer to take such actions as it determines to be reasonably necessary to
comply with its servicing, administrative and management duties hereunder, and
the Trustee shall execute and deliver or cause to be executed and delivered such
other documents as a Special Servicing Officer may request, that are necessary
or appropriate to enable the Special Servicer to service, administer and manage
the Specially Serviced Mortgage Loans and carry out its duties hereunder, in
each case as the Special Servicer determines is in accordance with the Servicing
Standard and the terms of this Agreement; provided, that, prior to initiating
any proceedings in any court of law or equity (but not defending any proceedings
in any court of law or equity) or instituting any proceeding to foreclose on any
Mortgaged Property in the name of the Trust in any state, the Special Servicer
shall notify the Trustee in writing and not institute or initiate any such
proceedings for a period of five Business Days from the date of its delivery of
such notice to the Trustee, unless the Special Servicer reasonably believes that
such action should be taken in less than five Business Days to preserve the
property of the Trust for the benefit of Certificateholders, and the Trustee may
within five Business Days of its receipt of such notice advise the Special
Servicer that it has received an Opinion of Counsel (the cost of which shall be
an expense of the Trust) from an attorney duly licensed to practice law in the
state where the related Mortgaged Property or REO Property is located, that it
is likely that the laws of the state in which said action is to be taken either
prohibit such action if taken in the name of the Trust or that the Trust would
be adversely affected under the "doing business" or tax laws of such state if
such action is taken in its name; provided, further, that the Special Servicer
shall not be liable to the extent that it relies on the advice provided in such
Opinion of Counsel. Upon receipt of any such advice from the Trustee, the
Special Servicer shall take such action in the name of such Person or Persons,
in trust for the Trust (or holder of a B Note or the RSA Companion Loan, if
applicable), as shall be consistent with the Opinion of Counsel obtained by the
Trustee. Such Person or Persons shall acknowledge in writing that such action is
being taken by the Special Servicer in the name of the Trust (or holder of a B
Note or the RSA Companion Loan, if applicable). In the performance of its duties
hereunder, the Special Servicer shall be an independent contractor and shall
not, except in those instances where it is, after notice to the Trustee as
provided above, taking action in the name of the Trust (or holder of a B Note or
the RSA Companion Loan, if applicable), be deemed to be the agent of the Trust
(or holder of a B Note or the RSA Companion Loan, as applicable). The Special
Servicer shall indemnify the Trustee for any loss, liability or reasonable
expense (including attorneys' fees) incurred by the Trustee or any director,
officer, employee, agent or Controlling Person of it or its affiliates in
connection with any negligent or intentional misuse of the foregoing powers of
attorney furnished to the Special Servicer by the Trustee. Such indemnification
shall survive the resignation or termination of the Special Servicer hereunder,
the resignation or termination of the Trustee and the termination of this
Agreement. The Special Servicer shall not have any responsibility or liability
for any act or omission of the Trustee, the Master Servicer or the Depositor
that is not attributable to the failure of the Special Servicer to perform its
obligations hereunder. The Special Servicer may conclusively rely on any advice
of counsel rendered in a Nondisqualification Opinion.
(b) In servicing and administering the Specially Serviced
Mortgage Loans and managing any related REO Properties, the Special Servicer
shall employ procedures consistent with the Servicing Standard. The Special
Servicer shall conduct, or cause to be conducted,
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inspections, at its own expense, of the Mortgaged Properties relating to
Specially Serviced Mortgage Loans at such times and in such manner as shall be
consistent with the Servicing Standard; provided, that the Special Servicer
shall conduct, or cause to be conducted, inspections of the Mortgaged Properties
relating to Specially Serviced Mortgage Loans at least once during each
twelve-month period that ends on June 30 of any calendar year (commencing with
the twelve-month period ending June 30, 2004); provided further that the Special
Servicer shall, at the expense of the Trust, inspect or cause to be inspected
each Mortgaged Property related to a Mortgage Loan that is delinquent for sixty
(60) days in the payment of any amounts due under such Mortgage Loan. The
Special Servicer shall provide to the Master Servicer (who shall provide, solely
as it relates to any A/B Mortgage Loan, to the holder of the related B Note, and
solely as it relates to the Loan Pair, to the holder of the RSA Companion Loan)
and the Operating Adviser copies of the Inspection Reports relating to such
inspections as soon as practicable after the completion of any inspection.
(c) Pursuant to the Loan Pair Intercreditor Agreement, the
owner of the RSA Companion Loan has agreed that the Master Servicer and the
Special Servicer are authorized and obligated to service and administer the RSA
Companion Loan pursuant to this Agreement.
(d) Pursuant to the related Loan Pair Intercreditor
Agreement, each owner of the RSA Companion Loan has agreed that the Master
Servicer and the Special Servicer are authorized and obligated to service and
administer such RSA Companion Loan pursuant to this Agreement. Notwithstanding
anything herein to the contrary, the parties hereto acknowledge and agree that
the Special Servicer's obligations and responsibilities hereunder and the
Special Servicer's authority with respect to the RSA Pari Passu Loan are limited
by and subject to the terms of the Loan Pair Intercreditor Agreement. At such
time when the RSA Companion Loan is deposited into a different commercial
mortgage securitization (the "Other Securitization"), the Special Servicer shall
be required to consult with the special servicer of the Other Securitization
(the "Other Special Servicer") in respect thereof, and shall provide the Other
Special Servicer with an opportunity to review any proposed action to be taken
in respect thereof. The Other Special Servicer and the operating adviser of the
Other Securitization (the "Other Operating Adviser") shall have such opportunity
to consult with the Special Servicer for a period from the date of receipt of
the Special Servicer's written description of its proposed action through (but
excluding) the fifth Business Day following the date of receipt (the "Initial
Review Period"). The Special Servicer shall implement its written proposal if
the Other Special Servicer (in consultation with the Other Operating Adviser)
does not disapprove the proposed action within the Initial Review Period, unless
the Special Servicer has been directed to do otherwise by the Operating Adviser
(in which event the Special Servicer shall advise the Other Special Servicer of
such alternate course of action). If the Other Special Servicer (in consultation
with the Other Operating Adviser) disagrees with any aspect of the written
proposal and, after consulting with the Special Servicer during the Initial
Review Period, is unable to reach agreement on the proper course of action and
notifies the Special Servicer of its disagreement in writing, then the Other
Special Servicer shall be entitled to an additional period of five Business Days
(the "Additional Review Period") to continue its discussions with the Special
Servicer and the Operating Adviser. If the Other Special Servicer and the
Special Servicer agree on a revised course of action within the Initial Review
Period or the Additional Review Period, then the Special Servicer shall revise
the written proposal to reflect the agreed upon revised course of action and
shall implement that course of action. If the Other Special Servicer and the
Special Servicer are unable to agree on the appropriate course of action by the
end of the Additional Review Period, then the Special
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Servicer shall decide, in accordance with the Servicing Standard set forth in
this Agreement, what course of action to follow. If an Event of Default has
occurred with respect to the Special Servicer under this Agreement, which Event
of Default does not relate to any Mortgage Loan other than the Loan Pair, then
the trustee under the pooling and servicing agreement relating to the Other
Securitization (the "Other Pooling and Servicing Agreement") shall be entitled
to direct the Trustee to (a) terminate the defaulting Special Servicer solely
with respect to the Loan Pair and (b) appoint a successor Special Servicer that
meets the eligibility requirements of the Other Pooling and Servicing Agreement
and this Agreement. In such event, the trustee under the Other Pooling and
Servicing Agreement shall exercise its rights set forth in the preceding
sentence at the direction of the certificateholders holding at least 25% of the
certificate balance of the certificates issued under the Other Securitization or
the Other Operating Adviser. The replacement of the Special Servicer with
respect to the Loan Pair, as contemplated above, will in any event be subject to
obtaining Rating Agency Confirmation hereunder and any required Rating Agency
Confirmation with respect to the certificates by the trustee under the Other
Pooling and Servicing Agreement.
(e) Pursuant to the applicable Xxxx Xxxxxxx Tower
Intercreditor Agreement, the owners of the Xxxx Xxxxxxx Tower Pari Passu Loan
have agreed that such owner's rights in, to and under the Xxxx Xxxxxxx Tower
Pari Passu Loan are subject to the servicing and all other rights of the LB-UBS
Series 2003-C5 Master Servicer and the LB-UBS Series 2003-C5 Special Servicer
and the LB-UBS Series 2003-C5 Master Servicer and the LB-UBS Series 2003-C5
Special Servicer are authorized and obligated to service and administer the Xxxx
Xxxxxxx Tower Pari Passu Loan pursuant to the LB-UBS Series 2003-C5 Pooling and
Servicing Agreement. Notwithstanding anything herein to the contrary, the
parties hereto acknowledge and agree that the Special Servicer's obligations and
responsibilities hereunder and the Special Servicer's authority with respect to
the Xxxx Xxxxxxx Tower Pari Passu Loan are limited by and subject to the terms
of the applicable Xxxx Xxxxxxx Tower Intercreditor Agreement and the rights of
the LB-UBS Series 2003-C5 Master Servicer and the LB-UBS Series 2003-C5 Special
Servicer with respect thereto under the LB-UBS Series 2003-C5 Pooling and
Servicing Agreement. The Special Servicer shall take such actions as it shall
deem reasonably necessary to facilitate the servicing of the Xxxx Xxxxxxx Tower
Pari Passu Loan by the LB-UBS Series 2003-C5 Master Servicer and the LB-UBS
Series 2003-C5 Special Servicer including, but not limited to, delivering
appropriate Requests for Release to the Trustee and Custodian (if any) in order
to deliver any portion of the related Mortgage File to the LB-UBS Series 2003-C5
Master Servicer or LB-UBS Series 2003-C5 Special Servicer under the LB-UBS
Series 2003-C5 Pooling and Servicing Agreement.
SECTION 9.5 "DUE-ON-SALE" CLAUSES; ASSIGNMENT AND ASSUMPTION
AGREEMENTS; MODIFICATIONS OF SPECIALLY SERVICED MORTGAGE LOANS;
DUE-ON-ENCUMBRANCE CLAUSES.
Subject to the limitations of Section 12.3, the Special
Servicer shall have the following duties and rights:
(a) If any Specially Serviced Mortgage Loan contains a
provision in the nature of a "due-on-sale" clause, which by its terms:
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(i) provides that such Specially Serviced Mortgage
Loan shall (or may at the Mortgagee's option) become due and payable upon the
sale or other transfer of an interest in the related Mortgaged Property or
ownership interest in the related Mortgagor, or
(ii) provides that such Specially Serviced Mortgage
Loan may not be assumed, or ownership interests in the related Mortgagor may not
be transferred, without the consent of the related mortgagee in connection with
any such sale or other transfer,
then, the Special Servicer, on behalf of the Trust, shall, after consultation
with the Operating Adviser and in accordance with the REMIC Provisions, take
such actions as it deems to be in the best economic interest of the Trust in
accordance with the Servicing Standard, and may waive or enforce any due-on-sale
clause contained in the related Mortgage Note or Mortgage; provided, however,
that if the Principal Balance of such Mortgage Loan at such time equals or
exceeds 5% of the Aggregate Certificate Balance or exceeds $35,000,000 or is one
of the then current top 10 loans (by Principal Balance) in the pool, then prior
to waiving the effect of such provision, the Special Servicer shall obtain
Rating Agency Confirmation regarding such waiver. In connection with the request
for such consent, the Special Servicer shall prepare and deliver to Xxxxx'x and
S&P a memorandum outlining its analysis and recommendation in accordance with
the Servicing Standard, together with copies of all relevant documentation. The
Special Servicer shall also prepare and provide Xxxxx'x and S&P with such
memorandum and documentation for all transfer, assumption and encumbrance
consents granted for Mortgage Loans below the threshold set forth above, but for
which the Special Servicer's decision will be sufficient and a Rating Agency
Confirmation is not required. As to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan and contains a provision in the nature of a "due-on-sale"
clause, the Special Servicer shall have the rights and duties set forth in
Section 8.7(b). The Special Servicer shall be entitled to 100% of all assumption
fees in connection with Specially Serviced Mortgage Loans.
After notice to the Operating Adviser, the Special Servicer is
also authorized to take or enter into an assignment and assumption agreement
from or with the Person to whom such property has been or is about to be
conveyed, and/or to release the original Mortgagor from liability upon the
Specially Serviced Mortgage Loan and substitute the new Mortgagor as obligor
thereon; provided, that except as otherwise permitted by Section 9.5(c), any
such assignment and assumption or substitution agreement shall contain no terms
that could result in an Adverse REMIC Event. To the extent permitted by law, the
Special Servicer shall enter into an assumption or substitution agreement that
is required under the related Mortgage Loan documents (either as a matter of
right or upon satisfaction of specified conditions) and shall otherwise enter
into any assumption or substitution agreement only if the credit status of the
prospective new mortgagor and the underwriting of the new mortgagor is in
compliance with the Special Servicer's regular commercial mortgage origination
or servicing standards and criteria. The Special Servicer shall notify the
Master Servicer of any such assignment and assumption or substitution agreement
and the Special Servicer shall forward to the Trustee the original of such
agreement, which original shall be added by the Trustee to the related Mortgage
File and shall, for all purposes, be considered a part of such Mortgage File to
the same extent as all other documents and instruments constituting a part
thereof.
(b) In connection with any assignment and assumption of a
Specially Serviced Mortgage Loan, in no event shall the Special Servicer consent
to the creation of any lien on a Mortgaged Property that is senior to, or on a
parity with, the lien of the related Mortgage.
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Nothing in this Section 9.5 shall constitute a waiver of the Trustee's right, as
the mortgagee of record, to receive notice of any assignment and assumption of a
Specially Serviced Mortgage Loan, any sale or other transfer of the related
Mortgaged Property or the creation of any lien or other encumbrance with respect
to such Mortgaged Property.
(c) Subject to the Servicing Standard and Sections 9.39 and
9.40, and the rights and duties of the Master Servicer under Section 8.18, the
Special Servicer may enter into any modification, waiver or amendment
(including, without limitation, the substitution or release of collateral or the
pledge of additional collateral) of the terms of any Specially Serviced Mortgage
Loan, including any modification, waiver or amendment to (i) reduce the amounts
owing under any Specially Serviced Mortgage Loan by forgiving principal, accrued
interest and/or any Prepayment Premium, (ii) reduce the amount of the Scheduled
Payment on any Specially Serviced Mortgage Loan, including by way of a reduction
in the related Mortgage Rate, (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage relating to a Specially Serviced
Mortgage Loan, (iv) extend the Maturity Date of any Specially Serviced Mortgage
Loan and/or (v) accept a principal prepayment on any Specially Serviced Mortgage
Loan during any period during which voluntary Principal Prepayments are
prohibited, provided, in the case of any such modification, waiver or amendment,
that (A) the related Mortgagor is in default with respect to the Specially
Serviced Mortgage Loan or, in the reasonable judgment of the Special Servicer,
such default is reasonably foreseeable, (B) in the reasonable judgment of the
Special Servicer, such modification, waiver or amendment would increase the
recovery on the Specially Serviced Mortgage Loan to Certificateholders, the
holder of the RSA Companion Loan and the holder of the related B Note (as a
collective whole) on a net present value basis (the relevant discounting of
amounts that will be distributable to Certificateholders, the holder of the RSA
Companion Loan and the holder of the related B Note (as a collective whole) to
be performed at the related Mortgage Rate (or, in the case of an A/B Mortgage
Loan, such discounting to be performed at the weighted average of the Mortgage
Rate and the stated mortgage rate on the B Note), (C) such modification, waiver
or amendment would not cause an Adverse REMIC Event (including with respect to
any securities evidencing interests in any A Note or any B Note) to occur or
adversely affect the tax status of the B Note Trust, and (D) if notice to the
Operating Adviser of such modification, waiver or amendment is required pursuant
to Section 9.39, the Special Servicer has made such notice. The Special
Servicer, with respect to any B Note and the RSA Companion Loan that is a
Specially Serviced Mortgage Loan, shall notify the holder of the B Note and the
RSA Companion Loan, as applicable, of any modification of the monthly payments
of an A/B Mortgage Loan or Loan Pair, as the case may be, and such monthly
payments shall be allocated in accordance with the related Intercreditor
Agreement or Loan Pair Intercreditor Agreement, as applicable.
In no event, however, shall the Special Servicer (i) extend
the Maturity Date of a Specially Serviced Mortgage Loan beyond a date that is
two years prior to the Rated Final Distribution Date or (ii) if the Specially
Serviced Mortgage Loan is secured by a ground lease, extend the Maturity Date of
such Specially Serviced Mortgage Loan unless the Special Servicer gives due
consideration to the remaining term of such ground lease. The Special Servicer
shall not extend the Maturity Date of any Mortgage Loan secured by a Mortgaged
Property covered by a group secured creditor impaired property environmental
insurance policy for more than five years beyond such Mortgage Loan's Maturity
Date unless a new Phase I Environmental Report indicates that there is no
environmental condition or the Mortgagor obtains, at its expense, an extension
of such policy on the same terms and conditions to cover the period through five
years
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past the extended Maturity Date, provided that, (i) if such Mortgage Loan is
secured by a ground lease, the Special Servicer shall give due consideration to
the remaining term of the ground lease and (ii) in no case shall the Maturity
Date of any such Mortgage Loan be extended past a date that is two years prior
to the Rated Final Distribution Date.
The determination of the Special Servicer contemplated by
clause (B) of the proviso to the first paragraph of this Section 9.5(c) shall be
evidenced by an Officer's Certificate certifying the information in the proviso
to the first paragraph under this subsection (c).
(d) In the event the Special Servicer intends to permit a
Mortgagor to substitute collateral for all or any portion of a Mortgaged
Property pursuant to Section 9.5(c) or pledge additional collateral for the
Mortgage Loan pursuant to Section 9.5(c), if the security interest of the Trust,
the holder of the RSA Companion Loan or the holder of any B Note in such
collateral would be perfected by possession, or if such collateral requires
special care or protection, then prior to agreeing to such substitution or
addition of collateral, the Special Servicer shall make arrangements for such
possession, care or protection, and prior to agreeing to such substitution or
addition of collateral (or such arrangement for possession, care or protection)
shall obtain the prior written consent of the Trustee with respect thereto
(which consent shall not be unreasonably withheld, delayed or conditioned);
provided, however, that the Trustee shall not be required (but has the option)
to consent to any substitution or addition of collateral or to hold any such
collateral which will require the Trustee to undertake any additional duties or
obligations or incur any additional expense. Notwithstanding the foregoing, the
Special Servicer will not permit a Mortgagor to substitute collateral for any
portion of the Mortgaged Property pursuant to Section 9.5(c) unless it shall
have received a Rating Agency Confirmation in connection therewith, the costs of
which to be payable by the related Mortgagor to the extent provided for in the
Mortgage Loan documents. If the Mortgagor is not required to pay for the Rating
Agency Confirmation, then such expense will be paid by the Trust. The parties
hereto acknowledge that if the Trust incurs any Additional Trust Expense
associated solely with the release of collateral that is not required to be paid
by a Mortgagor pursuant to the related Mortgage Loan documents (and such
Additional Trust Expense is not paid by the Mortgagor), including, but not
limited to, rating agency fees, then the sole obligation of the related Seller
shall be to pay an amount equal to such expense to the extent the related
Mortgagor is not required to pay them. Promptly upon receipt of notice of such
unpaid expense, regarding a Specially Serviced Mortgage Loan, the Special
Servicer shall request the related Seller to make such payment by deposit to the
Certificate Account.
(e) The Special Servicer will promptly deliver to the
Master Servicer, the Operating Adviser, the Trustee, the Paying Agent, the
Rating Agencies (and, solely with respect to an A/B Mortgage Loan) a notice,
specifying any such assignments and assumptions, modifications, waivers or
amendments, such notice identifying the affected Specially Serviced Mortgage
Loan. Such notice shall set forth the reasons for such waiver, modification, or
amendment (including, but not limited to, information such as related income and
expense statements, rent rolls, occupancy status, property inspections, and an
internal or external appraisal performed in accordance with MAI standards and
methodologies (and, if done externally, the cost of such appraisal shall be
recoverable as a Servicing Advance subject to the provisions of Section 4.4
hereof)). The Special Servicer shall also deliver to the Trustee (or the
Custodian), for deposit in the related Mortgage File, an original counterpart of
the agreement relating to such modification, waiver or amendment promptly
following the execution thereof.
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(f) No fee described in this Section shall be collected by
the Special Servicer from the Mortgagor (or on behalf of the Mortgagor) in
conjunction with any consent or any modification, waiver or amendment of the
Mortgage Loan if the collection of such fee would cause such consent,
modification, waiver or amendment to be a "significant modification" of the
Mortgage Note within the meaning of Treasury Regulation ss. 1.860G-2(b). Subject
to the foregoing, the Special Servicer shall use its reasonable efforts, in
accordance with the Servicing Standard, to collect any modification fees and
other expenses connected with a permitted modification of a Mortgage Loan from
the Mortgagor. The inability of the Mortgagor to pay any costs and expenses of a
proposed modification shall not impair the right of the Special Servicer, the
Master Servicer or the Trustee to be reimbursed by the Trust for such expenses
(including any cost and expense associated with the Opinion of Counsel referred
to in this Section).
(g) The Special Servicer shall cooperate with the Master
Servicer (as provided in Section 8.7) in connection with assignments and
assumptions of Mortgage Loans that are not Specially Serviced Mortgage Loans,
and shall be entitled to receive 50% of any assumption fee paid by the related
Mortgagor in connection with an assignment and assumption executed pursuant to
Section 8.7(a) and 50% of any assumption fee paid by the related Mortgagor in
connection with an assignment and assumption executed pursuant to Section
8.7(b). The Special Servicer shall be entitled to 100% of any assumption fee
received in connection with a Specially Serviced Mortgage Loan.
(h) Notwithstanding anything herein to the contrary, (i)
the Special Servicer shall not have any right or obligation to consult with or
to seek and/or obtain consent or approval from the Operating Adviser prior to
acting, and provisions of this Agreement requiring such shall be of no effect,
if the Operating Adviser resigns or is removed, during the period following such
resignation or removal until a replacement is elected and (ii) no advice,
direction or objection from or by the Operating Adviser, as contemplated by this
Agreement, may (and the Special Servicer shall ignore and act without regard to
any such advice, direction or objection that the Special Servicer has
determined, in its reasonable good faith judgment would) (A) require or cause
the Special Servicer to violate applicable law, the terms of any Mortgage Loan,
any provision of this Agreement or the REMIC Provisions, including the Special
Servicer's obligation to act in accordance with the Servicing Standard, (B)
result in an Adverse REMIC Event with respect to any REMIC Pool, (C) expose the
Trust, the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent, the Paying Agent or the Trustee, or any of their respective Affiliates,
officers, directors, employees or agents, to any material claim, suit or
liability, or (D) materially expand the scope of the Special Servicer's
responsibilities under this Agreement.
(i) If any Specially Serviced Mortgage Loan which contains
a provision in the nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may
at the mortgagee's option) become due and payable upon the creation of
any additional lien or other encumbrance on the related Mortgaged
Property or a lien on an ownership interest in the Mortgagor; or
(ii) requires the consent of the mortgagee to the
creation of any such additional lien or other encumbrance on the
related Mortgaged Property or a lien on an ownership interest in the
Mortgagor,
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then, for so long as such Mortgage Loan is included in the Trust, the Special
Servicer, on behalf of the Trustee as the mortgagee of record, shall exercise
(or, subject to Section 9.5, waive its right to exercise) any right it may have
with respect to such Mortgage Loan (x) to accelerate the payments thereon, or
(y) to withhold its consent to the creation of any such additional lien or other
encumbrance, in a manner consistent with the Servicing Standard. Prior to
waiving the effect of such provision with respect to a Mortgage Loan, the
Special Servicer shall obtain Rating Agency Confirmation regarding such waiver;
provided, however, that such Rating Agency Confirmation shall only be required
if the applicable Mortgage Loan (x) represents 2% or more of the Principal
Balance of all of the Mortgage Loans held by the Trust or is one of the 10
largest Mortgage Loans based on Principal Balance and (y) such Mortgage Loan has
a Loan-to-Value Ratio (which includes Junior Indebtedness and any other loans
secured by the related Mortgaged Property, if any) that is greater than or equal
to 85% and a Debt Service Coverage Ratio (which includes debt service on Junior
Indebtedness and any other loans secured by the related Mortgaged Property, if
any) that is less than 1.2x.
SECTION 9.6 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any
Specially Serviced Mortgage Loan, or the receipt by the Special Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, or the complete defeasance of a Mortgage Loan, the Special
Servicer will immediately notify the Master Servicer. The Special Servicer shall
determine, in accordance with the Servicing Standard, whether an instrument of
satisfaction shall be delivered and, if the Special Servicer determines that
such instrument should be delivered, the Special Servicer shall deliver written
approval of such delivery to the Master Servicer.
(b) From time to time and as appropriate for the servicing
or foreclosure of any Specially Serviced Mortgage Loan or the management of the
related REO Property and in accordance with the Servicing Standard, the Trustee
shall execute or cause to be executed such documents as shall be prepared and
furnished to the Trustee by a Special Servicing Officer (in form reasonably
acceptable to the Trustee) and as are necessary for such purposes. The Trustee
or Custodian shall, upon request of the Special Servicer and delivery to the
Trustee or Custodian of a request for release signed by a Special Servicing
Officer substantially in the form of Exhibit C, release the related Mortgage
File to the Special Servicer. After the transfer of servicing with respect to
any Specially Serviced Mortgage Loan to the Special Servicer, in accordance with
the Servicing Standard, the Master Servicer shall notify, in writing, the
Mortgagor under each Specially Serviced Mortgage Loan transferred to the Special
Servicer, of such transfer.
(c) The Special Servicer shall send notification in
writing, to the Master Servicer to request any documents and instruments in the
possession of the Master Servicer related to any Specially Serviced Mortgage
Loan.
(d) The Special Servicer shall, with respect to any
Rehabilitated Mortgage Loan, release to the Master Servicer all documents and
instruments in the possession of the Special Servicer related to such
Rehabilitated Mortgage Loan. Prior to the transfer of servicing with respect to
any Rehabilitated Mortgage Loan to the Master Servicer in accordance with the
Servicing Standard, the Special Servicer shall notify, in writing, each
Mortgagor under each Rehabilitated Mortgage Loan of such transfer.
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SECTION 9.7 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF
SPECIAL SERVICER TO BE HELD FOR THE TRUSTEE.
(a) The Special Servicer shall transmit to the Trustee or
Custodian such documents and instruments coming into the possession of the
Special Servicer as from time to time are required by the terms hereof to be
delivered to the Trustee. Any funds received by the Special Servicer in respect
of any Specially Serviced Mortgage Loan or any REO Property or which otherwise
are collected by the Special Servicer as Liquidation Proceeds, Condemnation
Proceeds or Insurance Proceeds in respect of any Specially Serviced Mortgage
Loan or any REO Property shall be transmitted to the Master Servicer within one
Business Day of receipt to the Certificate Account, except that if such amounts
relate to REO Income, they shall be deposited in the REO Account. The Special
Servicer shall provide access to information and documentation regarding the
Specially Serviced Mortgage Loans to the Trustee, the Master Servicer, the
Fiscal Agent, the Paying Agent, the Operating Adviser and their respective
agents and accountants at any time upon reasonable written request and during
normal business hours, provided that the Special Servicer shall not be required
to take any action or provide any information that the Special Servicer
determines will result in any material cost or expense to which it is not
entitled to reimbursement hereunder or will result in any material liability for
which it is not indemnified hereunder; provided further that the Trustee and the
Paying Agent shall be entitled to receive from the Special Servicer all such
information as the Trustee and the Paying Agent shall reasonably require to
perform their respective duties hereunder. In fulfilling such a request, the
Special Servicer shall not be responsible for determining whether such
information is sufficient for the Trustee's, the Master Servicer's, the Fiscal
Agent's, the Paying Agent's or the Operating Adviser's purposes.
(b) The Special Servicer hereby acknowledges that the Trust
(and/or the holder of the related B Note, if an A/B Mortgage Loan is involved
and/or the holder of the RSA Companion Loan, if the Loan Pair is involved) owns
the Specially Serviced Mortgage Loans and all Mortgage Files representing such
Specially Serviced Mortgage Loans and all funds now or hereafter held by, or
under the control of, the Special Servicer that are collected by the Special
Servicer in connection with the Specially Serviced Mortgage Loans (but excluding
any Special Servicer Compensation and all other amounts to which the Special
Servicer is entitled hereunder); and the Special Servicer agrees that all
documents or instruments constituting part of the Mortgage Files, and such funds
relating to the Specially Serviced Mortgage Loans which come into the possession
or custody of, or which are subject to the control of, the Special Servicer,
shall be held by the Special Servicer for and on behalf of the Trust (or the
holder of the related B Note, if an A/B Mortgage Loan is involved or the holder
of the RSA Companion Loan, if the Loan Pair is involved).
(c) The Special Servicer also agrees that it shall not
create, incur or subject any Specially Serviced Mortgage Loans, or any funds
that are required to be deposited in any REO Account to any claim, lien,
security interest, judgment, levy, writ of attachment or other encumbrance, nor
assert by legal action or otherwise any claim or right of setoff against any
Specially Serviced Mortgage Loan or any funds, collected on, or in connection
with, a Specially Serviced Mortgage Loan.
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SECTION 9.8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SPECIAL SERVICER.
(a) The Special Servicer hereby represents and warrants to
and covenants with the Trustee, as of the Closing Date:
(i) the Special Servicer is duly organized, validly
existing and in good standing as a corporation under the laws of the State of
Delaware, and shall be in compliance with the laws of each State in which any
Mortgaged Property (including any REO Property) which is, or is related to a
Specially Serviced Mortgage Loan is located to the extent necessary to perform
its obligations under this Agreement, except where the failure to so qualify or
comply would not adversely affect the Special Servicer's ability to perform its
obligations hereunder in accordance with the terms of this Agreement;
(ii) the Special Servicer has the full power and
authority to execute, deliver, perform, and to enter into and consummate all
transactions and obligations contemplated by this Agreement. The Special
Servicer has duly and validly authorized the execution, delivery and performance
by it of this Agreement and this Agreement has been duly executed and delivered
by the Special Servicer; and this Agreement, assuming the due authorization,
execution and delivery thereof by the Depositor, the Trustee, the Fiscal Agent,
the Paying Agent and the Master Servicer, evidences the valid and binding
obligation of the Special Servicer enforceable against the Special Servicer in
accordance with its terms subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, receivership and other
similar laws affecting creditors' rights generally as from time to time in
effect, and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iii) the execution and delivery of this Agreement by
the Special Servicer, the consummation by the Special Servicer of the
transactions contemplated hereby, and the fulfillment of or compliance by the
Special Servicer with the terms and conditions of this Agreement will not (1)
result in a breach of any term or provision of its charter or by-laws or (2)
conflict with, result in a breach, violation or acceleration of, or result in a
default under, the terms of any other material agreement or instrument to which
it is a party or by which it may be bound, or any law, governmental rule,
regulation, or judgment, decree or order applicable to it of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects its ability to perform its
obligations under this Agreement;
(iv) no litigation is pending or, to the best of the
Special Servicer's knowledge, threatened, against it, the outcome of which, in
the Special Servicer's reasonable judgment, could reasonably be expected to
materially and adversely affect the execution, delivery or enforceability of
this Agreement or its ability to service the Mortgage Loans or to perform any of
its other obligations hereunder in accordance with the terms hereof; and
(v) no consent, approval, authorization or order of
any court or governmental agency or body is required for the execution, delivery
and performance by it of, or compliance by it with, this Agreement, or the
consummation of the transactions contemplated
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hereby, or if any such consent, approval, authorization or order is required, it
has obtained the same or will obtain the same prior to the time necessary to
perform its obligations under this Agreement, and, except to the extent in the
case of performance, that its failure to be qualified as a foreign corporation
or licensed in one or more states is not necessary for the performance by it of
its obligations hereunder.
(b) It is understood that the representations and
warranties set forth in this Section 9.8 shall survive the execution and
delivery of this Agreement.
(c) Any cause of action against the Special Servicer
arising out of the breach of any representations and warranties made in this
Section shall accrue upon the giving of written notice to the Special Servicer
by any of the Trustee, the Master Servicer, the Paying Agent or the Fiscal
Agent. The Special Servicer shall give prompt notice to the Trustee, the Fiscal
Agent, the Paying Agent, the Depositor, the Operating Adviser and the Master
Servicer of the occurrence, or the failure to occur, of any event that, with
notice, or the passage of time or both, would cause any representation or
warranty in this Section to be untrue or inaccurate in any respect.
SECTION 9.9 STANDARD HAZARD, FLOOD AND COMPREHENSIVE GENERAL
LIABILITY INSURANCE POLICIES.
(a) For all REO Property, the Special Servicer shall use
reasonable efforts, consistent with the Servicing Standard, to maintain with a
Qualified Insurer (A) a Standard Hazard Insurance Policy (that, if the terms of
the related Mortgage Loan documents and the related Mortgage so require,
contains no exclusion as to any Act or Acts of Terrorism, as defined in the
Terrorism Risk Insurance Act of 2002) which does not provide for reduction due
to depreciation in an amount which is not less than the full replacement cost of
the improvements of such REO Property or in an amount not less than the unpaid
Principal Balance plus all unpaid interest and the cumulative amount of
Servicing Advances (plus Advance Interest) made with respect to such Mortgage
Loan, any related B Note and the RSA Companion Loan, whichever is less, but, in
any event, in an amount sufficient to avoid the application of any co-insurance
clause and (B) any other insurance coverage for such REO Property which the
related Mortgagor was required to maintain for the related Mortgaged Property
under the related Mortgage, subject, as to earthquake insurance, to the second
sentence following this sentence. If the improvements to the Mortgaged Property
are in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards (and such flood insurance has
been made available), the Special Servicer shall maintain a flood insurance
policy meeting the requirements of the current guidelines of the Federal
Insurance Administration in an amount representing coverage equal to the lesser
of the then outstanding Principal Balance of the Specially Serviced Mortgage
Loan and unpaid Advances (plus Advance Interest) and the maximum insurance
coverage required under such current guidelines. It is understood and agreed
that the Special Servicer has no obligation to obtain earthquake or other
additional insurance on REO Property, except as required by law or, with respect
to insurance other than earthquake insurance, as set forth in clause (B) of the
first sentence of this Section 9.9(a) and, nevertheless, at its sole option and
at the Trust's expense, it (if required at origination and is available at
commercially reasonable rates) may obtain such earthquake insurance. The Special
Servicer shall use its reasonable efforts, consistent with the Servicing
Standard, to obtain a
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comprehensive general liability insurance policy for all REO Properties. The
Special Servicer shall, to the extent available at commercially reasonable rates
(as determined by the Special Servicer in accordance with the Servicing
Standard) and to the extent consistent with the Servicing Standard, use its
reasonable efforts to maintain a Rent Loss Policy covering revenues for a period
of at least twelve months and a comprehensive general liability policy with
coverage comparable to prudent lending requirements in an amount not less than
$1 million per occurrence. All applicable policies required to be maintained by
the Special Servicer pursuant to this Section 9.9(a) shall name the Trustee as
loss payee and be endorsed with a standard mortgagee clause. The costs of such
insurance shall be a Servicing Advance, subject to the provisions of Section 4.4
hereof.
(b) Any amounts collected by the Special Servicer under any
insurance policies maintained pursuant to this Section 9.9 (other than amounts
to be applied to the restoration or repair of the REO Property) shall be
deposited into the applicable REO Account. Any cost incurred in maintaining the
insurance required hereby for any REO Property shall be a Servicing Advance,
subject to the provisions of Section 4.4 hereof.
(c) Notwithstanding the above, the Special Servicer shall
not be required in any event to maintain or obtain insurance coverage beyond
what is reasonably available at a cost customarily acceptable and consistent
with the Servicing Standard; provided that, the Special Servicer will be
required to maintain insurance against property damages resulting from terrorism
or similar acts if the terms of the related Mortgage Loan documents so require
unless the Special Servicer determines that (i) such insurance is not available
at any rate or (ii) such insurance is not available at commercially reasonable
rates and such hazards are not at the time commonly insured against for
properties similar to the related Mortgaged Property and located in or around
the region in which such related Mortgaged Property is located. The Special
Servicer shall notify the Trustee of any such determination.
(d) The Special Servicer shall conclusively be deemed to
have satisfied its obligations as set forth in this Section 9.9 either (i) if
the Special Servicer shall have obtained and maintained a master force placed or
blanket insurance policy insuring against hazard losses on all of the applicable
Mortgage Loans, the RSA Companion Loan and any B Note serviced by it, it being
understood and agreed that such policy may contain a deductible clause on terms
substantially equivalent to those commercially available and maintained by
comparable servicers consistent with the Servicing Standard, and provided that
such policy is issued by a Qualified Insurer with a minimum claims paying
ability rating of at least "A2" by Xxxxx'x and "A-" by S&P or otherwise approved
by the Rating Agencies or (ii) if the Special Servicer, provided that the rating
of such Person's long-term debt is not less than "A2" by Xxxxx'x and "A-" by S&P
self-insures for its obligations as set forth in the first paragraph of this
Section 9.9. In the event that the Special Servicer shall cause any Mortgage
Loan, the RSA Companion Loan and any B Note to be covered by such a master force
placed or blanket insurance policy, the incremental cost of such insurance
allocable to such Mortgage Loan, RSA Companion Loan and B Note (i.e., other than
any minimum or standby premium payable for such policy whether or not any
Mortgage Loan is then covered thereby), if not borne by the related Mortgagor,
shall be paid by the Special Servicer as a Servicing Advance, subject to the
provisions of Section 4.4 hereof. If such policy contains a deductible clause,
the Special Servicer shall, if there shall not have been maintained on the
related Mortgaged Property a policy complying with this Section 9.9 and there
shall have been a loss that would have been covered by such policy, deposit in
the Certificate
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Account the amount not otherwise payable under such master force placed or
blanket insurance policy because of such deductible clause to the extent that
such deductible exceeds (i) the deductible under the related Mortgage Loan or
A/B Mortgage Loan or (ii) if there is no deductible limitation required under
the Mortgage Loan or A/B Mortgage Loan, the deductible amount with respect to
insurance policies generally available on properties similar to the related
Mortgaged Property which is consistent with the Servicing Standard, and deliver
to the Trustee an Officer's Certificate describing the calculation of such
amount. In connection with its activities as administrator and servicer of the
Mortgage Loans, the RSA Companion Loan and any B Note, the Special Servicer
agrees to present, on its behalf and on behalf of the Trustee, claims under any
such master force placed or blanket insurance policy.
SECTION 9.10 PRESENTMENT OF CLAIMS AND COLLECTION OF
PROCEEDS. The Special Servicer will prepare and present or cause to be prepared
and presented on behalf of the Trustee all claims under the Insurance Policies
with respect to REO Property, and take such actions (including the negotiation,
settlement, compromise or enforcement of the insured's claim) as shall be
necessary to recover under such policies. Any proceeds disbursed to the Special
Servicer in respect of such policies shall be promptly remitted to the
Certificate Account, upon receipt, except for any amounts realized that are to
be applied to the repair or restoration of the applicable REO Property in
accordance with the Servicing Standard. Any extraordinary expenses (but not
ordinary and routine or anticipated expenses) incurred by the Special Servicer
in fulfilling its obligations under this Section 9.10 shall be paid by the
Trust.
SECTION 9.11 COMPENSATION TO THE SPECIAL SERVICER.
(a) As compensation for its activities hereunder, the
Special Servicer shall be entitled to (i) the Special Servicing Fee, (ii) the
Liquidation Fee and (iii) the Work-Out Fee. Such amounts, if any, collected by
the Special Servicer from the related Mortgagor shall be transferred by the
Special Servicer to the Master Servicer within one Business Day of receipt
thereof, and deposited by the Master Servicer in the Certificate Account. The
Special Servicer shall be entitled to receive a Liquidation Fee from the
Liquidation Proceeds received in connection with a final disposition of a
Specially Serviced Mortgage Loan or REO Property in whole or in part (whether
arising pursuant to a sale, condemnation or otherwise). With respect to each REO
Mortgage Loan that is a successor to a Mortgage Loan secured by two or more
Mortgaged Properties, the reference to "REO Property" in the preceding sentence
shall be construed on a property-by-property basis to refer separately to the
acquired real property that is a successor to each of such Mortgaged Properties,
thereby entitling the Special Servicer to a Liquidation Fee from the Liquidation
Proceeds received in connection with a final disposition of, and Condemnation
Proceeds received in connection with, each such acquired property as the
Liquidation Proceeds related to that property are received. The Special Servicer
shall also be entitled to additional special servicing compensation of an amount
equal to the excess, if any, of the aggregate Prepayment Interest Excess
relating to Mortgage Loans which are Specially Serviced Mortgage Loans which
have received voluntary Principal Prepayments not from Liquidation Proceeds or
from modifications of Specially Serviced Mortgage Loans for each Distribution
Date over the aggregate Prepayment Interest Shortfalls for such Mortgage Loans
for such Distribution Date. If the Special Servicer resigns or is terminated for
any reason, it shall retain the right to receive any Work-Out Fees payable on
Mortgage Loans that became Rehabilitated Mortgage Loans while it acted as
Special Servicer and remained Rehabilitated
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Mortgage Loans at the time of such resignation or termination for so long as
such Mortgage Loan remains a Rehabilitated Mortgage Loan.
(b) The Special Servicer shall be entitled to cause the
Master Servicer to withdraw (i) from the Certificate Account, the Special
Servicer Compensation in respect of each Mortgage Loan (but not a B Note), (ii)
from the RSA Companion Loan Custodial Account, the Special Servicer Compensation
to the extent related solely to the RSA Companion Loan and (iii) from any A/B
Loan Custodial Account, the Special Servicer Compensation to the extent related
solely to the related B Note, in the time and manner set forth in Section 5.2 of
this Agreement. The Special Servicer shall be required to pay all expenses
incurred by it in connection with its servicing activities hereunder and shall
not be entitled to reimbursement therefor except as expressly provided in this
Agreement.
(c) Additional Special Servicer Compensation in the form of
net interest or income on any REO Account, assumption fees, extension fees,
servicing fees, Modification Fees, forbearance fees, Late Fees and default
interest (net of amounts used to pay Advance Interest) or other usual and
customary charges and fees actually received from the Mortgagor in connection
with any Specially Serviced Mortgage Loan shall be retained by the Special
Servicer, to the extent not required to be deposited in the Certificate Account
pursuant to the terms of this Agreement (other than any such fees payable in
connection with the Xxxx Xxxxxxx Tower Pari Passu Loan). The Special Servicer
shall also be permitted to receive 50% of all assumption fees collected with
respect to Mortgage Loans that are not Specially Serviced Mortgage Loans as
provided in Section 8.7(a) and 100% of all assumption fees collected with
respect to Mortgage Loans that are Specially Serviced Mortgage Loans as provided
in Section 9.5(a) (other than any such fees payable in connection with the Xxxx
Xxxxxxx Tower Pari Passu Loan). To the extent any component of Special Servicer
Compensation is in respect of amounts usually and customarily paid by
Mortgagors, the Special Servicer shall use reasonable good faith efforts to
collect such amounts from the related Mortgagor, and to the extent so collected,
in full or in part, the Special Servicer shall not be entitled to compensation
for the portion so collected therefor hereunder out of the Trust.
SECTION 9.12 REALIZATION UPON DEFAULTED MORTGAGE LOANS.
(a) The Special Servicer, in accordance with the Servicing
Standard and subject to Section 9.4(a) and Section 9.36, shall use its
reasonable efforts to foreclose upon, repossess or otherwise comparably convert
the ownership of Mortgaged Properties securing such of the Specially Serviced
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments of
such Mortgage Loan, the sale of such Mortgage Loan in accordance with this
Agreement or the modification of such Mortgage Loan in accordance with this
Agreement. In connection with such foreclosure or other conversion of ownership,
the Special Servicer shall follow the Servicing Standard. The foregoing is
subject to the proviso that the Special Servicer shall not request that the
Master Servicer make a Servicing Advance for Liquidation Expenses that would be
a Nonrecoverable Advance unless the Special Servicer determines that such
Servicing Advance is in the best interest of the Certificateholders.
(b) The Special Servicer shall not acquire any personal
property relating to any Specially Serviced Mortgage Loan pursuant hereto unless
either:
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(i) such personal property is incidental to real
property (within the meaning of Section 856(e)(1) of the Code) so acquired by
the Special Servicer; or
(ii) the Special Servicer shall have received a
Nondisqualification Opinion (the cost of which shall be reimbursed by the Trust)
to the effect that the holding of such personal property by any REMIC Pool will
not cause the imposition of a tax on any REMIC Pool under the Code or cause any
REMIC Pool to fail to qualify as a REMIC.
(c) Notwithstanding anything to the contrary in this
Agreement, the Special Servicer shall not, on behalf of the Trust, obtain title
to a Mortgaged Property as a result of or in lieu of foreclosure or otherwise,
and shall not otherwise acquire possession of, or take any other action with
respect to, any Mortgaged Property, if, as a result of any such action the
Trust, or any trust that holds the RSA Companion Loan would be considered to
hold title to, to be a "mortgagee-in-possession" of, or to be an "owner" or
"operator" of such Mortgaged Property within the meaning of CERCLA, or any
applicable comparable federal, state or local law, or a "discharger" or
"responsible party" thereunder, unless the Special Servicer has also previously
determined in accordance with the Servicing Standard, based on a Phase I
Environmental Report prepared by a Person (who may be an employee or affiliate
of the Master Servicer or the Special Servicer) who regularly conducts
environmental site assessments in accordance with the standards of FNMA in the
case of multi-family mortgage loans and customary servicing practices in the
case of commercial loans for environmental assessments, which report shall be
delivered to the Trustee, that:
(i) such Mortgaged Property is in compliance with
applicable Environmental Laws or, if not, after consultation with an
environmental expert that taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce a
greater recovery on a net present value basis than not taking such actions;
(ii) taking such actions as are necessary to bring
the Mortgaged Property in compliance with applicable Environmental Laws is
reasonably likely to produce a greater recovery on a net present value basis
than pursuing a claim under the Environmental Insurance Policy; and
(iii) there are no circumstances or conditions present
or threatened at such Mortgaged Property relating to the use, management,
disposal or release of any hazardous substances, hazardous materials, hazardous
wastes, or petroleum-based materials for which investigation, testing,
monitoring, removal, clean-up or remediation could be required under any
federal, state or local law or regulation, or that, if any such materials are
present for which such action could be required, after consultation with an
environmental expert taking such actions with respect to the affected Mortgaged
Property is reasonably likely to produce a greater recovery on a net present
value basis than not taking such actions (after taking into account the
projected costs of such actions); provided, however, that such compliance
pursuant to clause (i) and (ii) above or the taking of such action pursuant to
this clause (iii) shall only be required to the extent that the cost thereof is
a Servicing Advance of the Master Servicer or the Special Servicer pursuant to
this Agreement, subject to the provisions of Section 4.4 hereof.
(d) The cost of the Phase I Environmental Report
contemplated by Section 9.12(c) may be treated as a Liquidation Expense, or in
the event the related Specially Serviced
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Mortgage Loan is not liquidated and a Final Recovery Determination has been made
with respect to such Specially Serviced Mortgage Loan, the Master Servicer shall
treat such cost as a Servicing Advance subject to the provisions of Section 4.4
hereof; provided that, in the latter event, the Special Servicer shall use its
good faith reasonable business efforts to recover such cost from the Mortgagor
in connection with the curing of the default under the Specially Serviced
Mortgage Loan.
(e) If the Special Servicer determines, pursuant to Section
9.12(c), that taking such actions as are necessary to bring any Mortgaged
Property into compliance with applicable Environmental Laws, or taking such
actions with respect to the containment, removal, clean-up or remediation of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, is not reasonably likely to
produce a greater recovery on a net present value basis than not taking such
actions (after taking into account the projected costs of such actions) or than
not pursuing a claim under the Environmental Insurance Policy, then the Special
Servicer shall take such action as it deems to be in the best economic interest
of the Trust (and the holder of the related B Note if in connection with an A/B
Mortgage Loan and the holder of the RSA Companion Loan if in connection with the
Loan Pair, taken as a collective whole), including, without limitation,
releasing the lien of the related Mortgage. If the Special Servicer determines
that a material possibility exists that Liquidation Expenses with respect to
Mortgaged Property (taking into account the cost of bringing it into compliance
with applicable Environmental Laws) would exceed the Principal Balance of the
related Mortgage Loan, the Special Servicer shall not attempt to bring such
Mortgaged Property into compliance and shall not acquire title to such Mortgaged
Property unless it has received the written consent of the Trustee to such
action.
(f) The Special Servicer shall have the right to determine,
in accordance with the Servicing Standard, the advisability of maintaining any
action with respect to any Specially Serviced Mortgage Loan, including, without
limitation, any action to obtain a deficiency judgment with respect to any
Specially Serviced Mortgage Loan.
SECTION 9.13 FORECLOSURE. In the event that the Trust
obtains, through foreclosure on a Mortgage or otherwise, the right to receive
title to a Mortgaged Property, the Special Servicer, as its agent, shall direct
the appropriate party to deliver title to the REO Property to the Trustee or its
nominee.
The Special Servicer may consult with counsel to determine
when an Acquisition Date shall be deemed to occur under the REMIC Provisions
with respect to the Mortgaged Property, the expense of such consultation being
treated as a Servicing Advance related to the foreclosure, subject to the
provisions of Section 4.4 hereof. The Special Servicer, on behalf of the Trust
(and the holder of the related B Note if in connection with an A/B Mortgage Loan
and the holder of the RSA Companion Loan if in connection with the Loan Pair),
shall sell the REO Property expeditiously, but in any event within the time
period, and subject to the conditions, set forth in Section 9.15. Subject to
Section 9.15, the Special Servicer shall manage, conserve, protect and operate
the REO Property for the holders of beneficial interests in the Trust (and the
holder of the related B Note if in connection with an A/B Mortgage Loan and the
holder of the RSA Companion Loan if in connection with the Loan Pair) solely for
the purpose of its prompt disposition and sale.
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SECTION 9.14 OPERATION OF REO PROPERTY
(a) The Special Servicer shall segregate and hold all funds
collected and received in connection with the operation of each REO Property
separate and apart from its own funds and general assets and shall establish and
maintain with respect to each REO Property one or more accounts held in trust
for the benefit of the Certificateholders (and the holder of the related B Note
if in connection with an A/B Mortgage Loan and the holder of the RSA Companion
Loan if in connection with the Loan Pair) in the name of "LaSalle Bank National
Association, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.
Commercial Mortgage Pass-Through Certificates Series 2003-TOP11, the holder of
the RSA Companion Loan and the holder of any B Note as their interests may
appear [name of Property Account]" (each, an "REO Account"), which shall be an
Eligible Account. Amounts in any REO Account shall be invested in Eligible
Investments. The Special Servicer shall deposit all funds received with respect
to an REO Property in the applicable REO Account within two days of receipt. The
Special Servicer shall account separately for funds received or expended with
respect to each REO Property. All funds in each REO Account may be invested only
in Eligible Investments. The Special Servicer shall notify the Trustee and the
Master Servicer in writing of the location and account number of each REO
Account and shall notify the Trustee prior to any subsequent change thereof.
(b) On or before each Special Servicer Remittance Date, the
Special Servicer shall withdraw from each REO Account and deposit in the
Certificate Account, the REO Income received or collected during the Collection
Period immediately preceding such Special Servicer Remittance Date on or with
respect to the related REO Properties and reinvestment income thereon; provided,
however, that (i) the Special Servicer may retain in such REO Account such
portion of such proceeds and collections as may be necessary to maintain in the
REO Account sufficient funds for the proper operation, management and
maintenance of the related REO Property, including, without limitation, the
creation of reasonable reserves for repairs, replacements, and necessary capital
improvements and other related expenses. The Special Servicer shall notify the
Master Servicer of all such deposits (and the REO Properties to which the
deposits relate) made into the Certificate Account and (ii) the Special Servicer
shall be entitled to withdraw from the REO Account and pay itself as additional
Special Servicing Compensation any interest or net reinvestment income earned on
funds deposited in the REO Account. The amount of any losses incurred in respect
of any such investments shall be for the account of the Special Servicer which
shall deposit the amount of such loss (to the extent not offset by income from
other investments) in the REO Account, out of its own funds immediately as
realized. If the Special Servicer deposits in any REO Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the REO Account, any provision herein to the contrary notwithstanding.
(c) If the Trust acquires the Mortgaged Property, the
Special Servicer shall have full power and authority, in consultation with the
Operating Adviser, and subject to the specific requirements and prohibitions of
this Agreement and any applicable consultation rights of the holder of the
related B Note relating to an A/B Mortgage Loan, to do any and all things in
connection therewith as are consistent with the Servicing Standard, subject to
the REMIC Provisions, and in such manner as the Special Servicer deems to be in
the best interest of the Trust (and in the case of any A/B Mortgage Loan, the
holder of the related B Note and the Trust as a collective whole and in the case
of the Loan Pair, the holder of the RSA Companion Loan and the Trust as a
collective whole), and, consistent therewith, may advance from its own funds
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to pay for the following items (which amounts shall be reimbursed by the Master
Servicer or the Trust subject to Sections 4.4 in accordance with Section
4.6(e)), to the extent such amounts cannot be paid from REO Income:
(i) all insurance premiums due and payable in
respect of such REO Property;
(ii) all real estate taxes and assessments in respect
of such REO Property that could result or have resulted in the imposition of a
lien thereon; and
(iii) all costs and expenses necessary to maintain,
operate, lease and sell such REO Property (other than capital expenditures).
(d) The Special Servicer may, and to the extent necessary
to (i) preserve the status of the REO Property as "foreclosure property" under
the REMIC Provisions or (ii) avoid the imposition of a tax on "income from
nonpermitted assets" within the meaning of the REMIC Provisions, shall contract
with any Independent Contractor for the operation and management of the REO
Property, provided that:
(i) the terms and conditions of any such contract
shall not be inconsistent herewith;
(ii) the terms of such contract shall be consistent
with the provisions of Section 856 of the Code and Treasury Regulation Section
1.856-4(b)(5);
(iii) only to the extent consistent with (ii) above,
any such contract shall require, or shall be administered to require, that the
Independent Contractor (A) pay all costs and expenses incurred in connection
with the operation and management of such Mortgaged Property underlying the REO
Property and (B) deposit on a daily basis all amounts payable to the Trust in
accordance with the contract between the Trust and the Independent Contractor in
an Eligible Account;
(iv) none of the provisions of this Section 9.14
relating to any such contract or to actions taken through any such Independent
Contractor shall be deemed to relieve the Special Servicer of any of its duties
and obligations to the Trustee with respect to the operation and management of
any such REO Property;
(v) if the Independent Contractor is an Affiliate of
the Special Servicer, the consent of the Operating Adviser and a
Nondisqualification Opinion must be obtained; and
(vi) the Special Servicer shall be obligated with
respect thereto to the same extent as if it alone were performing all duties and
obligations in connection with the operation and management of such REO
Property.
The Special Servicer shall be entitled to enter into any
agreement with any Independent Contractor performing services for the Trust
(and, if applicable, the holder of a B Note or the RSA Companion Loan) pursuant
to this subsection (d) for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed
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to limit or modify such indemnification. All fees of the Independent Contractor
(other than fees paid for performing services within the ordinary duties of a
Special Servicer which shall be paid by the Special Servicer) shall be paid from
the income derived from the REO Property. To the extent that the income from the
REO Property is insufficient, such fees shall be advanced by the Master Servicer
or the Special Servicer as a Servicing Advance, subject to the provisions of
Section 4.4 and Section 4.6(e) hereof.
(e) Notwithstanding any other provision of this Agreement,
the Special Servicer shall not rent, lease, or otherwise earn income on behalf
of the Trust or the beneficial owners thereof with respect to REO Property which
might cause the REO Property to fail to qualify as "foreclosure property" within
the meaning of Section 860G(a)(8) of the Code (without giving effect to the
final sentence thereof) or result in the receipt by any REMIC of any "income
from nonpermitted assets" within the meaning of Section 860F(a)(2) of the Code
or any "net income from foreclosure property" which is subject to tax under the
REMIC Provisions unless (i) the Trustee and the Special Servicer have received
an Opinion of Counsel (at the Trust's sole expense) to the effect that, under
the REMIC Provisions and any relevant proposed legislation, any income generated
for REMIC I by the REO Property would not result in the imposition of a tax upon
REMIC I or (ii) in accordance with the Servicing Standard, the Special Servicer
determines the income or earnings with respect to such REO Property will offset
any tax under the REMIC Provisions relating to such income or earnings and will
maximize the net recovery from the REO Property to the Certificateholders. The
Special Servicer shall notify the Trustee, the Paying Agent and the Master
Servicer of any election by it to incur such tax, and the Special Servicer (i)
shall hold in escrow in an Eligible Account an amount equal to the tax payable
thereby from revenues collected from the related REO Property, (ii) provide the
Paying Agent with all information for the Paying Agent to file the necessary tax
returns in connection therewith and (iii) upon request from the Paying Agent,
pay from such account to the Paying Agent the amount of the applicable tax. The
Paying Agent shall file the applicable tax returns based on the information
supplied by the Special Servicer and pay the applicable tax from the amounts
collected by the Special Servicer.
Subject to, and without limiting the generality of the
foregoing, the Special Servicer, on behalf of the Trust, shall not:
(i) permit the Trust to enter into, renew or extend
any New Lease with respect to the REO Property, if the New Lease by its terms
will give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued
under any New Lease other than amounts that will constitute Rents from Real
Property;
(iii) authorize or permit any construction on the REO
Property, other than the completion of a building or other improvement thereon,
and then only if more than ten percent of the construction of such building or
other improvement was completed before default on the Mortgage Loan became
imminent, all within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate, other than through an
Independent Contractor, or allow any other Person to Directly Operate, other
than through an Independent Contractor, the
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REO Property on any date more than 90 days after the Acquisition Date; unless,
in any such case, the Special Servicer has requested and received an Opinion of
Counsel at the Trust's sole expense to the effect that such action will not
cause such REO Property to fail to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code (without giving effect to the final
sentence thereof) at any time that it is held by the applicable REMIC Pool, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
SECTION 1.2 SALE OF REO PROPERTY.
(a) In the event that title to any REO Property is acquired
by the Trust in respect of any Specially Serviced Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, the Trustee or to its
nominees. The Special Servicer, after notice to the Operating Adviser, shall use
its reasonable best efforts to sell any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders
(and with respect to the RSA Companion Loan or B Note, for the holders of such
loans, as a collective whole), but in no event later than the end of the third
calendar year following the end of the year of its acquisition, and in any event
prior to the Rated Final Distribution Date or earlier to the extent necessary to
comply with REMIC provisions, unless (i) the Trustee, on behalf of the
applicable REMIC Pool, has been granted an extension of time (an "Extension")
(which extension shall be applied for at least 60 days prior to the expiration
of the period specified above) by the Internal Revenue Service to sell such REO
Property (a copy of which shall be delivered to the Paying Agent upon request),
in which case the Special Servicer shall continue to attempt to sell the REO
Property for its fair market value for such period longer than the period
specified above as such Extension permits or (ii) the Special Servicer seeks and
subsequently receives, at the expense of the Trust, a Nondisqualification
Opinion, addressed to the Trustee and the Special Servicer, to the effect that
the holding by the Trust of such REO Property subsequent to the period specified
above after its acquisition will not result in the imposition of taxes on
"prohibited transactions" of a REMIC, as defined in Section 860F(a)(2) of the
Code, or cause any REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Trustee has not received an Extension or
such Opinion of Counsel and the Special Servicer is not able to sell such REO
Property within the period specified above, or if an Extension has been granted
and the Special Servicer is unable to sell such REO Property within the extended
time period, the Special Servicer shall, after consultation with the Operating
Adviser, before the end of such period or extended period, as the case may be,
auction the REO Property to the highest bidder (which may be the Special
Servicer) in accordance with the Servicing Standard; provided, however, that no
Interested Person shall be permitted to purchase the REO Property at a price
less than the Purchase Price; and provided, further that if the Special Servicer
intends to bid on any REO Property, (i) the Special Servicer shall notify the
Trustee of such intent, (ii) the Trustee shall promptly obtain, at the expense
of the Trust an Appraisal of such REO Property (or internal valuation in
accordance with the procedures specified in Section 6.9) and (iii) the Special
Servicer shall not bid less than the fair market value set forth in such
Appraisal. Neither any Seller nor the Depositor may purchase REO Property at a
price in excess of the fair market value thereof.
(b) Within 30 days of the sale of the REO Property, the
Special Servicer shall provide to the Trustee, the Paying Agent and the Master
Servicer (and the holder of the related B Note, if any, if in connection with an
A/B Mortgage Loan and the holder of the RSA Companion
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Loan, if in connection with the Loan Pair) a statement of accounting for such
REO Property, including without limitation, (i) the Acquisition Date for the REO
Property, (ii) the date of disposition of the REO Property, (iii) the sale price
and related selling and other expenses, (iv) accrued interest (including
interest deemed to have accrued) on the Specially Serviced Mortgage Loan to
which the REO Property related, calculated from the Acquisition Date to the
disposition date, (v) final property operating statements, and (vi) such other
information as the Trustee or the Paying Agent (and the holder of the related B
Note, if any, if in connection with an A/B Mortgage Loan and the holder of the
RSA Companion Loan, if in connection with the Loan Pair) may reasonably request
in writing.
(c) The Liquidation Proceeds from the final disposition of
the REO Property shall be deposited in the Certificate Account within one
Business Day of receipt.
(d) The Special Servicer shall provide the necessary
information to the Master Servicer and the Paying Agent to allow the Master
Servicer to prepare, deliver and file reports of foreclosure and abandonment in
accordance with Section 6050J and Section 6050P, if required, of the Code with
respect to such REO Property and shall deliver such information with respect
thereto as the Master Servicer or the Paying Agent may request in writing.
SECTION 9.16 REALIZATION ON COLLATERAL SECURITY. In
connection with the enforcement of the rights of the Trust to any property
securing any Specially Serviced Mortgage Loan other than the related Mortgaged
Property, the Special Servicer shall consult with counsel to determine how best
to enforce such rights in a manner consistent with the REMIC Provisions and
shall not, based on a Nondisqualification Opinion addressed to the Special
Servicer and the Trustee (the cost of which shall be an expense of the Trust)
take any action that could result in the failure of any REMIC Pool to qualify as
a REMIC while any Certificates are outstanding, unless such action has been
approved by a vote of 100% of each Class of Certificateholders (including the
Class R-I, Class R-II and Class R-III Certificateholders).
SECTION 9.17 RESERVED
SECTION 9.18 ANNUAL OFFICER'S CERTIFICATE AS TO COMPLIANCE.
The Special Servicer shall deliver to the Paying Agent and the Master Servicer
on or before noon (Eastern Time) on March 15 of each calendar year (or March 14
if a leap year), commencing in March 2004, an Officer's Certificate stating, as
to the signer thereof, that (A) a review of the activities of the Special
Servicer during the preceding calendar year or portion thereof and of the
performance of the Special Servicer under this Agreement has been made under
such officer's supervision and (B) to the best of such officer's knowledge,
based on such review, the Special Servicer has fulfilled all its obligations
under this Agreement in all material respects throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof. The
Special Servicer shall deliver such Officer's Certificate to the Depositor and
the Trustee by April 7 of each calendar year. The Special Servicer shall forward
a copy of each such statement to the Rating Agencies. The Paying Agent shall
forward a copy of each such statement to the Luxembourg Paying Agent. Promptly
after receipt of such Officer's Certificate, the Depositor shall review the
Officer's Certificate and, if applicable, consult with the Special Servicer as
to the nature of any defaults by the Special Servicer in the fulfillment of any
of the Special Servicer's obligations hereunder.
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SECTION 9.19 ANNUAL INDEPENDENT ACCOUNTANTS' SERVICING
REPORT. On or before noon (Eastern Time) on March 15 of each calendar year (or
March 14 if a leap year), beginning with March 2004, the Special Servicer at its
expense shall cause a nationally recognized firm of Independent public
accountants (who may also render other services to the Special Servicer, as
applicable) to furnish to the Paying Agent and the Master Servicer (in
electronic format) a statement to the effect that (a) such firm has examined
certain documents and records relating to the servicing of the Mortgage Loans
under this Agreement or the servicing of mortgage loans similar to the Mortgage
Loans under substantially similar agreements for the preceding calendar year and
(b) the assertion by management of the Special Servicer, that it maintained an
effective internal control system over the servicing of such mortgage loans is
fairly stated in all material respects, based upon established criteria, which
statement meets the standards applicable to accountant's reports intended for
general distribution; provided that each of the Master Servicer and the Special
Servicer shall not be required to cause the delivery of such statement until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Report on Form 10-K is not required to be filed in respect
of the Trust Fund for the preceding calendar year. The Special Servicer shall
deliver such statement to the Depositor, each Rating Agency, the Trustee, and,
upon request, the Operating Adviser by April 7 of each calendar year (or by
April 30 of each calendar year if the statement is not required to be delivered
until April 15). The Paying Agent shall promptly deliver such statement to the
Luxembourg Paying Agent. Promptly after receipt of such report, the Depositor
shall review the report and, if applicable, consult with the Special Servicer as
to the nature of any defaults by the Special Servicer in the fulfillment of any
of the Special Servicer's obligations hereunder.
SECTION 9.20 MERGER OR CONSOLIDATION. Any Person into which
the Special Servicer may be merged or consolidated, or any Person resulting from
any merger, conversion, other change in form or consolidation to which the
Special Servicer shall be a party, or any Person succeeding to the business of
the Special Servicer, shall be the successor of the Special Servicer hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that each of the Rating Agencies
provides a Rating Agency Confirmation (including with respect to any securities
rated by a Rating Agency evidencing interests in the A Notes and any B Note). If
the conditions to the proviso in the foregoing sentence are not met, the Trustee
may terminate the Special Servicer's servicing of the Specially Serviced
Mortgage Loans pursuant hereto, such termination to be effected in the manner
set forth in Section 9.31.
SECTION 9.21 RESIGNATION OF SPECIAL SERVICER.
(a) Except as otherwise provided in this Section 9.21, the
Special Servicer shall not resign from the obligations and duties hereby imposed
on it unless it determines that the Special Servicer's duties hereunder are no
longer permissible under applicable law or are in material conflict by reason of
applicable law with any other activities carried on by it. Any such
determination permitting the resignation of the Special Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Master
Servicer, the Operating Adviser and the Trustee. No such resignation shall
become effective until a successor servicer designated by the Operating Adviser
and the Trustee shall have (i) satisfied the requirements that would apply
pursuant to Section 9.20 hereof if a merger of the Special Servicer had
occurred, (ii) assumed the Special Servicer's responsibilities and obligations
under this Agreement and (iii) Rating Agency
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Confirmation (including with respect to any securities rated by a Rating Agency
evidencing interests in the A Notes and any B Note).shall have been obtained.
Notice of such resignation shall be given promptly by the Special Servicer to
the Master Servicer and the Trustee.
(b) The Special Servicer may resign from the obligations
and duties hereby imposed on it, upon reasonable notice to the Trustee, provided
that (i) a successor Special Servicer is (x) available, (y) reasonably
acceptable to the Operating Adviser, the Depositor, and the Trustee, and (z)
willing to assume the obligations, responsibilities and covenants to be
performed hereunder by the Special Servicer on substantially the same terms and
conditions, and for not more than equivalent compensation as that herein
provided, (ii) the successor Special Servicer has assets of at least $15,000,000
and (iii) Rating Agency Confirmation is obtained with respect to such
resignation, as evidenced by a letter from each Rating Agency delivered to the
Trustee. Any costs of such resignation and of obtaining a replacement Special
Servicer shall be borne by the Special Servicer and shall not be an expense of
the Trust.
(c) No such resignation under paragraph (b) above shall
become effective unless and until such successor Special Servicer enters into a
servicing agreement with the Trustee assuming the obligations and
responsibilities of the Special Servicer hereunder in form and substance
reasonably satisfactory to the Trustee.
(d) Upon any resignation of the Special Servicer, it shall
retain the right to receive any and all Work-Out Fees payable in respect of
Mortgage Loans, the RSA Companion Loan and any B Note that became Rehabilitated
Mortgage Loans during the period that it acted as Special Servicer and that were
still Rehabilitated Mortgage Loans at the time of such resignation (and the
successor Special Servicer shall not be entitled to any portion of such Work-Out
Fees), in each case until such time (if any) as such Mortgage Loan, RSA
Companion Loan or B Note again becomes a Specially Serviced Mortgage Loan or are
no longer included in the Trust.
SECTION 9.22 ASSIGNMENT OR DELEGATION OF DUTIES BY SPECIAL
SERVICER. The Special Servicer shall have the right without the prior written
consent of the Trustee to (A) delegate or subcontract with or authorize or
appoint anyone, or delegate certain duties to other professionals such as
attorneys and appraisers, as an agent of the Special Servicer or Sub-Servicers
(as provided in Section 9.3) to perform and carry out any duties, covenants or
obligations to be performed and carried out by the Special Servicer hereunder or
(B) assign and delegate all of its duties hereunder. In the case of any such
assignment and delegation in accordance with the requirements of clause (A) of
this Section, the Special Servicer shall not be released from its obligations
under this Agreement. In the case of any such assignment and delegation in
accordance with the requirements of clause (B) of this Section, the Special
Servicer shall be released from its obligations under this Agreement, except
that the Special Servicer shall remain liable for all liabilities and
obligations incurred by it as the Special Servicer hereunder prior to the
satisfaction of the following conditions: (i) the Special Servicer gives the
Depositor, the Master Servicer, the Primary Servicer and the Trustee notice of
such assignment and delegation; (ii) such purchaser or transferee accepting such
assignment and delegation executes and delivers to the Depositor and the Trustee
an agreement accepting such assignment, which contains an assumption by such
Person of the rights, powers, duties, responsibilities, obligations and
liabilities of the Special Servicer, with like effect as if originally named as
a party to this Agreement; (iii) the purchaser or transferee has assets in
excess of $15,000,000; (iv) such
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assignment and delegation is the subject of a Rating Agency Confirmation; and
(v) the Depositor consents to such assignment and delegation, such consent not
be unreasonably withheld. Notwithstanding the above, the Special Servicer may
appoint Sub-Servicers in accordance with Section 9.3 hereof.
SECTION 9.23 LIMITATION ON LIABILITY OF THE SPECIAL SERVICER
AND OTHERS.
(a) Neither the Special Servicer nor any of the directors,
officers, employees or agents of the Special Servicer shall be under any
liability to the Certificateholders, the holder of any B Note, the holder of the
RSA Companion Loan or the Trustee for any action taken or for refraining from
the taking of any action in good faith and using reasonable business judgment;
provided that this provision shall not protect the Special Servicer or any such
person against any breach of a representation or warranty contained herein or
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in its performance of duties hereunder or by reason of
negligent disregard of obligations and duties hereunder. The Special Servicer
and any director, officer, employee or agent of the Special Servicer may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person (including, without limitation, the information and
reports delivered by or at the direction of the Master Servicer or any director,
officer, employee or agent of the Master Servicer) respecting any matters
arising hereunder. The Special Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Specially Serviced Mortgage Loans in accordance with this
Agreement; provided that the Special Servicer may in its sole discretion
undertake any such action which it may reasonably deem necessary or desirable in
order to protect the interests of the Certificateholders, the holder of any B
Note, the holder of the RSA Companion Loan and the Trustee in the Specially
Serviced Mortgage Loans, or shall undertake any such action if instructed to do
so by the Trustee. In such event, all legal expenses and costs of such action
(other than those that are connected with the routine performance by the Special
Servicer of its duties hereunder) shall be expenses and costs of the Trust, and
the Special Servicer shall be entitled to be reimbursed therefor as a Servicing
Advance, together with interest thereon, as provided by Section 5.2 hereof.
Notwithstanding any term in this Agreement, the Special Servicer shall not be
relieved from liability to, or entitled to indemnification from, the Trust for
any action taken by it at the direction of the Operating Adviser which is in
conflict with the Servicing Standard.
(b) In addition, the Special Servicer shall have no
liability with respect to, and shall be entitled to conclusively rely on as to
the truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Special Servicer and conforming to the
requirements of this Agreement. Neither the Special Servicer, nor any director,
officer, employee, agent or Affiliate, shall be personally liable for any error
of judgment made in good faith by any officer, unless it shall be proved that
the Special Servicer or such officer was negligent in ascertaining the pertinent
facts. Neither the Special Servicer, nor any director, officer, employee, agent
or Affiliate, shall be personally liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Agreement. The Special
Servicer shall be entitled to rely on reports and information supplied to it by
the Master Servicer and the related Mortgagors and shall have no duty to
investigate or confirm the accuracy of any such report or information.
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(c) The Special Servicer shall not be obligated to incur
any liabilities, costs, charges, fees or other expenses which relate to or arise
from any breach of any representation, warranty or covenant made by the
Depositor, the Master Servicer, the Fiscal Agent or the Trustee in this
Agreement. The Trust shall indemnify and hold harmless the Special Servicer from
any and all claims, liabilities, costs, charges, fees or other expenses which
relate to or arise from any such breach of representation, warranty or covenant
to the extent such amounts are not recoverable from the party committing such
breach.
(d) Except as otherwise specifically provided herein:
(i) the Special Servicer may rely, and shall be
protected in acting or refraining from acting upon, any resolution, officer's
certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond or
other paper or document believed or in good faith believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(ii) the Special Servicer may consult with counsel,
and any written advice or Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(iii) the Special Servicer shall not be personally
liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers
conferred upon it by this Agreement; and
(iv) the Special Servicer, in preparing any reports
hereunder, may rely, and shall be protected in acting or refraining from acting
upon any information (financial or other), statement, certificate, document,
agreement, covenant, notice, request or other paper reasonably believed or in
good faith believed by it to be genuine.
(e) The Special Servicer and any director, officer,
employee or agent of the Special Servicer shall be indemnified by the Master
Servicer, the Trustee, the Paying Agent and the Fiscal Agent, as the case may
be, and held harmless against any loss, liability or expense including
reasonable attorneys' fees incurred in connection with any legal action relating
to the Master Servicer's, the Trustee's, the Paying Agent's or the Fiscal
Agent's, as the case may be, respective willful misfeasance, bad faith or
negligence in the performance of its respective duties hereunder or by reason of
negligent disregard by such Person of its respective duties hereunder, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of any of the Special Servicer's
duties hereunder or by reason of negligent disregard of the Special Servicer's
obligations and duties hereunder. The Special Servicer shall promptly notify the
Master Servicer, the Trustee, the Paying Agent and the Fiscal Agent if a claim
is made by a third party entitling the Special Servicer to indemnification
hereunder, whereupon the Master Servicer, the Trustee or the Paying Agent, in
each case, to the extent the claim was made in connection with its willful
misfeasance, bad faith or negligence, shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Special Servicer). Any failure to
so notify the Master Servicer, the Trustee or the Paying Agent shall not affect
any rights the Special Servicer may have to indemnification hereunder or
otherwise, unless the interest of the Master Servicer, the Trustee or the Paying
Agent is materially prejudiced
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thereby. The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Special Servicer. Such
indemnity shall survive the termination of this Agreement or the resignation or
removal of the Special Servicer hereunder. Any payment hereunder made by the
Master Servicer, the Trustee, the Fiscal Agent or the Paying Agent, as the case
may be, pursuant to this paragraph to the Special Servicer shall be paid from
the Master Servicer's, the Trustee's, Fiscal Agent's or the Paying Agent's, as
the case may be, own funds, without reimbursement from the Trust therefor,
except achieved through subrogation as provided in this Agreement. Any expenses
incurred or indemnification payments made by the Trustee, the Paying Agent, the
Fiscal Agent or the Master Servicer shall be reimbursed by the party so paid, if
a court of competent jurisdiction makes a final judgment that the conduct of the
Trustee, the Paying Agent, the Fiscal Agent or the Master Servicer, as the case
may be, was (x) not culpable or (y) found to not have acted with willful
misfeasance, bad faith or negligence.
SECTION 9.24 INDEMNIFICATION; THIRD-PARTY CLAIMS.
(a) The Special Servicer and any director, officer,
employee or agent of the Special Servicer shall be indemnified and held harmless
by the Trust, out of the proceeds of the Mortgage Loans and the A/B Mortgage
Loan (if and to the extent that the matter relates to such A/B Mortgage Loan)
against any and all claims, losses, penalties, fines, forfeitures, legal fees
and related costs, judgments and any other costs, liabilities, fees and expenses
incurred in connection with any legal action relating to (i) this Agreement, and
(ii) any action taken by the Special Servicer in accordance with the instruction
delivered in writing to the Special Servicer by the Trustee or the Master
Servicer pursuant to any provision of this Agreement in each case and the
Special Servicer and each of its directors, officers, employees and agents shall
be entitled to indemnification from the Trust for any loss, liability or expense
(including attorneys' fees) incurred in connection with the provision by the
Special Servicer of any information included by the Special Servicer in the
report required to be provided by the Special Servicer pursuant to this
Agreement, other than any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder. The Special Servicer shall assume the defense of any such claim (with
counsel reasonably satisfactory to the Special Servicer) and the Trust shall
pay, from amounts on deposit in the Certificate Account pursuant to Section 5.2,
all expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against it or
them in respect of such claim. The indemnification provided herein shall survive
the termination of this Agreement and the termination or resignation of the
Special Servicer. Any expenses incurred or indemnification payments made by the
Trust shall be reimbursed by the Special Servicer, if a court of competent
jurisdiction makes a final, non-appealable judgment that the Special Servicer
was found to have acted with willful misfeasance, bad faith or negligence.
Notwithstanding the foregoing, if such loss, liability or expense relates
specifically to the RSA Pari Passu Loan (or another Mortgage Loan included in
the Trust) or the RSA Companion Loan, then such indemnification shall be paid
out of collections on, and other proceeds of, such RSA Pari Passu Loan, other
Mortgage Loan or RSA Companion Loan, as applicable and not out of proceeds of
any related B Note. If such loss, liability or expense relates to an A/B
Mortgage Loan but does not relate to the related A Note and does not relate
primarily to the administration of the Trust or any REMIC formed hereunder or to
any determination respecting the amount, payment or avoidance of any tax under
the REMIC provisions of the Code or the actual payment of any REMIC tax or
expense, then
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such indemnification shall be paid first out of collections on, and other
proceeds of, the related B Note until such point as such indemnification is paid
in full or a Final Recovery Determination has been made with respect to such B
Note and only then out of collections on, and other proceeds of, the related A
Note.
(b) The Special Servicer agrees to indemnify the Trust, and
the Trustee, the Fiscal Agent, the Depositor, the Master Servicer, the Paying
Agent and any director, officer, employee or agent or Controlling Person of the
Trustee, the Fiscal Agent, the Depositor and the Master Servicer, and hold them
harmless against any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments, and any other costs, liabilities, fees
and expenses that the Trust or the Trustee, the Fiscal Agent, the Depositor, the
Paying Agent or the Master Servicer may sustain arising from or as a result of
the willful misfeasance, bad faith or negligence in the performance of duties
hereunder or by reason of negligent disregard of obligations and duties
hereunder by the Special Servicer. The Trustee, the Fiscal Agent, the Depositor,
the Paying Agent or the Master Servicer shall immediately notify the Special
Servicer if a claim is made by a third party with respect to this Agreement or
the Specially Serviced Mortgage Loans entitling the Trust or the Trustee, the
Fiscal Agent, the Depositor, the Paying Agent or the Master Servicer, as the
case may be, to indemnification hereunder, whereupon the Special Servicer shall
assume the defense of any such claim (with counsel reasonably satisfactory to
the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the Master
Servicer, as the case may be) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Special Servicer shall not affect any rights the Trust
or the Trustee, the Fiscal Agent, the Depositor, the Paying Agent or the Master
Servicer may have to indemnification under this Agreement or otherwise, unless
the Special Servicer's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of this
Agreement and the termination or resignation of the Special Servicer, the Paying
Agent or the Trustee or Fiscal Agent. Any expenses incurred or indemnification
payments made by the Special Servicer shall be reimbursed by the party so paid,
if a court of competent jurisdiction makes a final, non-appealable judgment that
the conduct of the Special Servicer was not culpable or found to have acted with
willful misfeasance, bad faith or negligence.
(c) The initial Special Servicer and the Depositor
expressly agree that the only information furnished by or on behalf of the
Special Servicer for inclusion in the Preliminary Prospectus Supplement and the
Final Prospectus Supplement is the information set forth in the paragraph under
the caption "SERVICING OF THE MORTGAGE LOANS--The Master Servicer and Special
Servicer--Special Servicer" of the Preliminary Prospectus Supplement and Final
Prospectus Supplement.
(d) The LB-UBS Series 2003-C5 Special Servicer and any
director, officer, employee or agent of the LB-UBS Series 2003-C5 Special
Servicer shall be indemnified by the Trust and held harmless against the Trust's
pro rata share of any and all claims, losses, penalties, fines, forfeitures,
legal fees and related costs, judgments and any other costs, liabilities, fees
and expenses incurred in connection with any legal action relating to the LB-UBS
Series 2003-C5 Pooling and Servicing Agreement and this Agreement, and relating
to the Xxxx Xxxxxxx Tower Pari Passu Loan (but excluding any such losses
allocable to the Xxxx Xxxxxxx Tower Companion Loans), reasonably requiring the
use of counsel or the incurring of expenses other than any losses
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incurred by reason of the LB-UBS Series 2003-C5 Special Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties under the
LB-UBS Series 2003-C5 Pooling and Servicing Agreement.
SECTION 9.25 RESERVED
SECTION 9.26 SPECIAL SERVICER MAY OWN CERTIFICATES. The
Special Servicer or any agent of the Special Servicer in its individual capacity
or in any other capacity may become the owner or pledgee of Certificates with
the same rights as it would have if they were not the Special Servicer or such
agent. Any such interest of the Special Servicer or such agent in the
Certificates shall not be taken into account when evaluating whether actions of
the Special Servicer are consistent with its obligations in accordance with the
Servicing Standard regardless of whether such actions may have the effect of
benefiting the Class or Classes of Certificates owned by the Special Servicer.
SECTION 9.27 TAX REPORTING. The Special Servicer shall
provide the necessary information to the Master Servicer to allow the Master
Servicer to comply with the Mortgagor tax reporting requirements imposed by
Sections 6050H, 6050J and 6050P of the Code with respect to any Specially
Serviced Mortgage Loan. The Special Servicer shall provide to the Master
Servicer copies of any such reports. The Master Servicer shall forward such
reports to the Trustee and the Paying Agent.
SECTION 9.28 APPLICATION OF FUNDS RECEIVED. It is anticipated
that the Master Servicer will be collecting all payments with respect to the
Mortgage Loans, the RSA Companion Loan and any B Note (other than payments with
respect to REO Income). If, however, the Special Servicer should receive any
payments with respect to any Mortgage Loan (other than REO Income) it shall,
within one Business Day of receipt from the Mortgagor or otherwise of any
amounts attributable to payments with respect to or the sale of any Mortgage
Loan or any Specially Serviced Mortgage Loan, if any, (but not including REO
Income, which shall be deposited in the applicable REO Account as provided in
Section 9.14 hereof), either, (i) forward such payment (endorsed, if applicable,
to the order of the Master Servicer), to the Master Servicer, or (ii) deposit
such amounts, or cause such amounts to be deposited, in the Certificate Account.
The Special Servicer shall notify the Master Servicer of each such amount
received on or before the date required for the making of such deposit or
transfer, as the case may be, indicating the Mortgage Loan or Specially Serviced
Mortgage Loan to which the amount is to be applied and the type of payment made
by or on behalf of the related Mortgagor.
SECTION 9.29 COMPLIANCE WITH REMIC PROVISIONS. The Special
Servicer shall act in accordance with this Agreement and the provisions of the
Code relating to REMICs in order to create or maintain the status of any REMIC
Pool as a REMIC under the Code or, as appropriate, adopt a plan of complete
liquidation. The Special Servicer shall not take any action or cause any REMIC
Pool to take any action that would (i) endanger the status of any REMIC as a
REMIC under the Code or (ii) subject to Section 9.14(e), result in the
imposition of a tax upon any REMIC Pool (including, but not limited to, the tax
on prohibited transactions as defined in Code Section 860F(a)(2) or on
prohibited contributions pursuant to Section 860G(d)) unless the Master Servicer
and the Trustee have received a Nondisqualification Opinion (at the expense of
the party seeking to take such action) to the effect that the contemplated
action will not endanger
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such status or result in the imposition of such tax. The Special Servicer shall
comply with the provisions of Article XII hereof.
SECTION 9.30 TERMINATION.
(a) The obligations and responsibilities of the Special
Servicer created hereby (other than the obligation of the Special Servicer to
make payments to the Master Servicer as set forth in Section 9.28 and the
obligations of the Special Servicer pursuant to Sections 9.8 and 9.24 hereof)
shall terminate on the date which is the earliest of (i) the later of (A) the
final payment or other liquidation of the last Mortgage Loan remaining
outstanding (and final distribution to the Certificateholders) or, (B) the
disposition of all REO Property in respect of any Specially Serviced Mortgage
Loan (and final distribution to the Certificateholders), (ii) 60 days following
the date on which the Trustee or the Operating Adviser has given written notice
to the Special Servicer that the Special Servicer is terminated pursuant to
Section 9.30(b) or 9.30(c), respectively, and (iii) the effective date of any
resignation of the Special Servicer effected pursuant to and in accordance with
Section 9.21. The obligations and responsibilities of the Special Servicer
created hereby with respect to the Loan Pair (other than the obligation of the
Special Servicer to make payments to the Master Servicer as set forth in Section
9.28, the obligations of the Special Servicer pursuant to Sections 9.8 and 9.24
hereof and obligations under this Agreement that survive termination) shall
terminate on the date that is 60 days following the date on which the Trustee
has given written notice to the Special Servicer that this Agreement is
terminated with respect to the Special Servicer's obligations with respect to
such Loan Pair pursuant to Section 9.30(d).
(b) The Trustee may terminate the Special Servicer in the
event that (i) the Special Servicer has failed to remit any amount required to
be remitted to the Trustee, the Master Servicer, the Fiscal Agent, the Paying
Agent or the Depositor within one (1) Business Day following the date such
amount was required to have been remitted under the terms of this Agreement,
(ii) the Special Servicer has failed to deposit into any account any amount
required to be so deposited or remitted under the terms of this Agreement which
failure continues unremedied for one Business Day following the date on which
such deposit or remittance was first required to be made; (iii) the Special
Servicer has failed to duly observe or perform in any material respect any of
the other covenants or agreements of the Special Servicer set forth in this
Agreement, and the Special Servicer has failed to remedy such failure within
thirty (30) days after written notice of such failure, requiring the same to be
remedied, shall have been given to the Special Servicer by the Depositor or the
Trustee; provided, however, that if the Special Servicer certifies to the
Trustee and the Depositor that the Special Servicer is in good faith attempting
to remedy such failure, and the Certificateholders would not be affected
thereby, such cure period will be extended to the extent necessary to permit the
Special Servicer to cure such failure; provided, however, that such cure period
may not exceed 90 days; (iv) the Special Servicer has made one or more false or
misleading representations or warranties herein that materially and adversely
affects the interest of any Class of Certificates, and has failed to cure such
breach within thirty (30) days after notice of such breach, requiring the same
to be remedied, shall have been given to the Special Servicer by the Depositor
or the Trustee, provided, however, that if the Special Servicer certifies to the
Trustee and the Depositor that the Special Servicer is in good faith attempting
to remedy such failure, such cure period may be extended to the extent necessary
to permit the Special Servicer to cure such failure; provided, however, that
such cure period may not exceed 90 days; (v) a Special Servicing Officer of the
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Special Servicer receives actual knowledge that Xxxxx'x has (A) qualified,
downgraded or withdrawn its rating or ratings of one or more Classes of
Certificates, or (B) placed one or more Classes of Certificates on "watch
status" in contemplation of a rating downgrade or withdrawal (and such "watch
status" placement shall not have been withdrawn by Xxxxx'x within 60 days of the
date that a Special Servicing Officer of the Special Servicer obtained such
actual knowledge) and, in the case of either of clauses (A) or (B), citing
servicing concerns with the Special Servicer as the sole or material factor in
such rating action; (vi) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar official
in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 60
days; (vii) the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings relating to the Special Servicer or of or
relating to all or substantially all of its property; or (viii) the Special
Servicer thereof shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
bankruptcy, insolvency or reorganization statute, make an assignment for the
benefit of its creditors, voluntarily suspend payment of its obligations, or
take any corporate action in furtherance of the foregoing; or (ix) the Special
Servicer is removed from S&P's approved special servicer list and is not
reinstated within 60 days and the ratings then assigned by S&P to any Classes of
Certificates are downgraded, qualified or withdrawn (including, without
limitation, being placed on "negative credit watch") in connection with such
removal. Such termination shall be effective on the date after the date of any
of the above events that the Trustee specifies in a written notice to the
Special Servicer specifying the reason for such termination. The Operating
Adviser shall have the right to appoint a successor if the Trustee terminates
the Special Servicer.
(c) The Operating Adviser shall have the right to direct
the Trustee to terminate the Special Servicer, provided that the Operating
Adviser shall appoint a successor Special Servicer who will (i) be reasonably
satisfactory to the Trustee and to the Depositor, and (ii) execute and deliver
to the Trustee an agreement, in form and substance reasonably satisfactory to
the Trustee, whereby the successor Special Servicer agrees to assume and perform
punctually the duties of the Special Servicer specified in this Agreement; and
provided, further, that the Trustee shall have received Rating Agency
Confirmation (including with respect to any securities rated by a Rating Agency
evidencing interests in the A Notes and any B Note) from each Rating Agency
prior to the termination of the Special Servicer. The Special Servicer shall not
be terminated pursuant to this subsection (c) until a successor Special Servicer
shall have been appointed. The Operating Adviser shall pay any costs and
expenses incurred by the Trust in connection with the removal and appointment of
a Special Servicer (unless such removal is based on any of the events or
circumstances set forth in Section 9.30(b)).
SECTION 9.31 PROCEDURE UPON TERMINATION.
(a) Notice of any termination pursuant to clause (i) of
Section 9.30(a), specifying the Distribution Date upon which the final
distribution shall be made, shall be given promptly by the Special Servicer to
the Trustee and the Paying Agent no later than the later of (i)
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five Business Days after the final payment or other liquidation of the last
Mortgage Loan or (ii) the sixth day of the month in which the final Distribution
Date will occur. Upon any such termination, the rights and duties of the Special
Servicer (other than the rights and duties of the Special Servicer pursuant to
Sections 9.8, 9.21, 9.23 and 9.24 hereof) shall terminate and the Special
Servicer shall transfer to the Master Servicer the amounts remaining in each REO
Account and shall thereafter terminate each REO Account and any other account or
fund maintained with respect to the Specially Serviced Mortgage Loans.
(b) On the date specified in a written notice of
termination given to the Special Servicer pursuant to clause (ii) of Section
9.30(a), all authority, power and rights of the Special Servicer under this
Agreement, whether with respect to the Specially Serviced Mortgage Loans or
otherwise, shall terminate; provided, that in no event shall the termination of
the Special Servicer be effective until the Trustee or other successor Special
Servicer shall have succeeded the Special Servicer as successor Special
Servicer, notified the Special Servicer of such designation, and such successor
Special Servicer shall have assumed the Special Servicer's obligations and
responsibilities, as set forth in an agreement substantially in the form hereof,
with respect to the Specially Serviced Mortgage Loans. The Trustee or other
successor Special Servicer may not succeed the Special Servicer as Special
Servicer until and unless it has satisfied the provisions that would apply to a
Person succeeding to the business of the Special Servicer pursuant to Section
9.20 hereof. The Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Special Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination. The Special Servicer agrees to cooperate with the Trustee and the
Fiscal Agent in effecting the termination of the Special Servicer's
responsibilities and rights hereunder as Special Servicer including, without
limitation, providing the Trustee all documents and records in electronic or
other form reasonably requested by it to enable the successor Special Servicer
designated by the Trustee to assume the Special Servicer's functions hereunder
and to effect the transfer to such successor for administration by it of all
amounts which shall at the time be or should have been deposited by the Special
Servicer in any REO Account and any other account or fund maintained or
thereafter received with respect to the Specially Serviced Mortgage Loans. On
the date specified in a written notice of termination given to the Special
Servicer pursuant to the second sentence of Section 9.30(a), all authority,
power and rights of the Special Servicer under this Agreement with respect to
the RSA Pari Passu Loan, whether such Mortgage Loan is a Specially Serviced
Mortgage Loan or otherwise, shall terminate. The Trustee is hereby authorized
and empowered to execute and deliver, on behalf of the Special Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination.
(c) If the Special Servicer receives a written notice of
termination pursuant to clause (ii) of Section 9.30(a) relating solely to an
event set forth in Section 9.30(b)(v) or (ix), and if the Special Servicer
provides the Trustee with the appropriate "request for proposal" materials
within five Business Days after receipt of such written notice of termination,
then the Trustee shall promptly thereafter (using such "request for proposal"
materials provided by the Special Servicer) solicit good faith bids for the
rights to be appointed as Special Servicer under this Agreement from at least
three but no more than five Qualified Bidders or, if three Qualified Bidders
cannot be located, then from as many persons as the Trustee can determine are
Qualified Bidders. At the Trustee's request, the Special Servicer shall supply
the Trustee with the names
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of Persons from whom to solicit such bids. In no event shall the Trustee be
responsible if less than three Qualified Bidders submit bids for the right to
service the Mortgage Loans, the RSA Companion Loan and any B Note under this
Agreement.
(d) Each bid proposal shall require any Successful Bidder,
as a condition of its bid, to enter into this Agreement as successor Special
Servicer, and to agree to be bound by the terms hereof, not later than 30 days
after termination of the Special Servicer hereunder. The Trustee shall select
the Qualified Bidder with the highest cash bid (or such other Qualified Bidder
as the Master Servicer may direct) that is also acceptable to the Operating
Adviser (the "Successful Bidder") to act as successor Special Servicer
hereunder. If no bidder is acceptable to the Operating Adviser, the Operating
Adviser shall appoint the successor Special Servicer after consultation with the
Controlling Class, provided that the successor Special Servicer so appointed
must be bound by the terms of this Agreement and there must be delivered a
Rating Agency Confirmation (including with respect to any securities evidencing
interests in the A Notes) in connection with such appointment. The Trustee shall
direct the Successful Bidder to enter into this Agreement as successor Special
Servicer pursuant to the terms hereof not later than 30 days after the
termination of the Special Servicer hereunder, and in connection therewith to
deliver the amount of the Successful Bidder's cash bid to the Trustee by wire
transfer of immediately available funds to an account specified by the Trustee
no later than 10:00 a.m. New York City time on the date specified for the
assignment and assumption of the servicing rights hereunder.
(e) Upon the assignment and acceptance of the servicing
right hereunder to and by the Successful Bidder and receipt of such cash bid,
the Trustee shall remit or cause to be remitted to the terminated Special
Servicer the amount of such cash bid received from the Successful Bidder (net of
out-of-pocket expenses incurred in connection with obtaining such bid and
transferring servicing) by wire transfer of immediately available funds to an
account specified by the terminated Special Servicer no later than 1:00 p.m. New
York City time on the date specified for the assignment and assumption of the
servicing rights hereunder.
(f) If the Successful Bidder has not entered into this
Agreement as successor Special within 30 days after the termination of the
Special Servicer hereunder or no Successful Bidder was identified within such
30-day period, the Trustee shall have no further obligations under Section
9.31(c) and may act or may select another successor to act as Special Servicer
hereunder in accordance with Section 9.31(b).
SECTION 9.32 CERTAIN SPECIAL SERVICER REPORTS.
(a) The Special Servicer, for each Specially Serviced
Mortgage Loan, shall provide to the Master Servicer and the Paying Agent one (1)
Business Day after the Determination Date for each month, the CMSA Special
Servicer Loan File in such electronic format as is mutually acceptable to the
Master Servicer and the Special Servicer and in CMSA format. The Master Servicer
and the Paying Agent may use such reports or information contained therein to
prepare its reports and the Master Servicer may, at its option, forward such
reports directly to the Depositor and the Rating Agencies.
(b) The Special Servicer shall maintain accurate records,
prepared by a Servicing Officer, of each Final Recovery Determination with
respect to any Mortgage Loan or
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REO Property and the basis thereof. Each Final Recovery Determination shall be
evidenced by an Officer's Certificate delivered to the Trustee, the Operating
Adviser, the Paying Agent and the Master Servicer no later than the ten Business
Day following such Final Recovery Determination.
(c) The Special Servicer shall provide to the Master
Servicer or the Paying Agent at the reasonable request in writing of the Master
Servicer or the Paying Agent, any information in its possession with respect to
the Specially Serviced Mortgage Loans which the Master Servicer or Paying Agent,
as the case may be, shall require in order for the Master Servicer or the Paying
Agent to comply with its obligations under this Agreement; provided that the
Special Servicer shall not be required to take any action or provide any
information that the Special Servicer determines will result in any material
cost or expense to which it is not entitled to reimbursement hereunder or will
result in any material liability for which it is not indemnified hereunder. The
Master Servicer shall provide the Special Servicer at the request of the Special
Servicer any information in its possession with respect to the Mortgage Loans
which the Master Servicer shall require in order for the Special Servicer to
comply with its obligations under this Agreement.
(d) Not later than 20 days after each Special Servicer
Remittance Date, the Special Servicer shall forward to the Master Servicer a
statement setting forth the status of each REO Account as of the close of
business on such Special Servicer Remittance Date, stating that all remittances
required to be made by it as required by this Agreement to be made by the
Special Servicer have been made (or, if any required distribution has not been
made by the Special Servicer, specifying the nature and status thereof) and
showing, for the period from the day following the preceding Special Servicer
Remittance Date to such Special Servicer Remittance Date, the aggregate of
deposits into and withdrawals from each REO Account for each category of deposit
specified in Section 5.1 of this Agreement and each category of withdrawal
specified in Section 5.2 of this Agreement.
(e) The Special Servicer shall use reasonable efforts to
obtain and, to the extent obtained, to deliver electronically using the ARCap
Naming Convention to the Master Servicer, the Paying Agent, the Rating Agencies
and the Operating Adviser, on or before April 15 of each year, commencing with
April 15, 2004, (i) copies of the prior year operating statements and quarterly
statements, if available, for each Mortgaged Property underlying a Specially
Serviced Mortgage Loan or REO Property as of its fiscal year end, provided that
either the related Mortgage Note or Mortgage requires the Mortgagor to provide
such information, or if the related Mortgage Loan has become an REO Property,
(ii) a copy of the most recent rent roll available for each Mortgaged Property,
and (iii) a table, setting forth the Debt Service Coverage Ratio and occupancy
with respect to each Mortgaged Property covered by the operating statements
delivered above; provided, that, with respect to any Mortgage Loan that becomes
a Specially Serviced Mortgage Loan prior to April 15, 2004 and for which the
items in clause (i) and (ii) above have not been delivered, the Special Servicer
shall use reasonable efforts to obtain and, to the extent obtained, deliver such
items to the Master Servicer, the Paying Agent, the Rating Agencies and the
Operating Adviser as soon as possible after receipt of such items.
(f) The Special Servicer shall deliver to the Master
Servicer, the Depositor, the Paying Agent and the Trustee all such other
information with respect to the Specially Serviced Mortgage Loans at such times
and to such extent as the Master Servicer, the Trustee,
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the Paying Agent or the Depositor may from time to time reasonably request;
provided, however, that the Special Servicer shall not be required to produce
any ad hoc non-standard written reports with respect to such Mortgage Loans
except if any Person (other than the Paying Agent or the Trustee) requesting
such report pays a reasonable fee to be determined by the Special Servicer
(g) The Special Servicer shall deliver electronically using
the ARCap Naming Convention a written Inspection Report of each Specially
Serviced Mortgage Loan in accordance with Section 9.4(b) to the Operating
Adviser.
(h) The Special Servicer shall provide, as soon as
practicable after a Mortgage Loan becomes a Specially Serviced Mortgage Loan, to
the Master Servicer its estimate of the net recoverable amount to the
Certificateholders (and the holder of the B Note if in connection with an A/B
Mortgage Loan and the holder of the RSA Companion Loan if in connection with the
Loan Pair) and anticipated expenses in connection therewith (and a general
description of the plan to achieve such recovery) of such Specially Serviced
Mortgage Loan and other information reasonably requested by the Master Servicer.
The Special Servicer shall update such information on a quarterly basis.
SECTION 9.33 SPECIAL SERVICER TO COOPERATE WITH THE MASTER
SERVICER AND PAYING AGENT.
(a) The Special Servicer shall furnish on a timely basis
such reports, certifications, and information as are reasonably requested by the
Master Servicer, the Trustee, the Paying Agent or any Primary Servicer to enable
it to perform its duties under this Agreement or the Primary Servicing
Agreement, as applicable; provided that no such request shall (i) require or
cause the Special Servicer to violate the Code, any provision of this Agreement,
including the Special Servicer's obligation to act in accordance with the
servicing standards set forth in this Agreement and to maintain the REMIC status
of any REMIC Pool or (ii) expose the Special Servicer, the Trust, the Fiscal
Agent, the Paying Agent or the Trustee to liability or materially expand the
scope of the Special Servicer's responsibilities under this Agreement. In
addition, the Special Servicer shall notify the Master Servicer of all
expenditures incurred by it with respect to the Specially Serviced Mortgage
Loans which are required to be made by the Master Servicer as Servicing Advances
as provided herein, subject to the provisions of Section 4.4 hereof. The Special
Servicer shall also remit all invoices relating to Servicing Advances promptly
upon receipt of such invoices.
(b) The Special Servicer shall from time to time make
reports, recommendations and analyses to the Operating Adviser with respect to
the following matters, the expense of which shall not be an expense of the
Trust:
(i) whether the foreclosure of a Mortgaged Property
relating to a Specially Serviced Mortgage Loan would be in the best economic
interest of the Trust;
(ii) if the Special Servicer elects to proceed with a
foreclosure, whether a deficiency judgment should or should not be sought
because the likely recovery will or will not be sufficient to warrant the cost,
time and exposure of pursuing such judgment;
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(iii) whether the waiver or enforcement of any "due-
on-sale" clause or "due-on-encumbrance" clause contained in a Mortgage Loan or a
Specially Serviced Mortgage Loan is in the best economic interest of the Trust;
(iv) in connection with entering into an assumption
agreement from or with a person to whom a Mortgaged Property securing a
Specially Serviced Mortgage Loan has been or is about to be conveyed, or to
release the original Mortgagor from liability upon a Specially Serviced Mortgage
Loan and substitute a new Mortgagor, and whether the credit status of the
prospective new Mortgagor is in compliance with the Special Servicer's regular
commercial mortgage origination or servicing standard;
(v) in connection with the foreclosure on a
Specially Serviced Mortgage Loan secured by a Mortgaged Property which is not in
compliance with CERCLA, or any comparable environmental law, whether it is in
the best economic interest of the Trust to bring the Mortgaged Property into
compliance therewith and an estimate of the cost to do so; and
(vi) with respect to any proposed modification (which
shall include any proposed release, substitution or addition of collateral),
extension, waiver, amendment, discounted payoff or sale of a Mortgage Loan,
prepare a summary of such proposed action and an analysis of whether or not such
action is reasonably likely to produce a greater recovery on a present value
basis than liquidation of such Mortgage Loan; such analysis shall specify the
basis on which the Special Servicer made such determination, including the
status of any existing material default or the grounds for concluding that a
payment default is imminent.
SECTION 9.34 RESERVED
SECTION 9.35 RESERVED
SECTION 9.36 SALE OF DEFAULTED MORTGAGE LOANS.
(a) The holder of Certificates evidencing the greatest
percentage interest in the Controlling Class, the Special Servicer and each
Seller (other than Xxxxx Fargo Bank, National Association) as to those Mortgage
Loans sold to the Depositor by such Seller only (in such capacity, together with
any assignee, the "Option Holder") shall, in that order, have the right, at its
option (the "Option"), to purchase a Mortgage Loan (other than the Xxxx Xxxxxxx
Tower Pari Passu Loan) from the Trust at a price equal to the Option Purchase
Price upon receipt of notice from the Special Servicer that such Mortgage Loan
has become at least 60 days delinquent as to any monthly debt service payment
(or is delinquent as to its Balloon Payment); provided, however, that with
respect to an A Note, the Option Holder's rights under this Section 9.36 are
subject to the rights of the holder of the related B Note to purchase the A Note
pursuant to the terms of the related Intercreditor Agreement. The Option is
exercisable, subject to Section 2.3, from that date until terminated pursuant to
clause (e) below, and during that period the Option shall be exercisable in any
month only during the period from the 10th calendar day of such month through
the 25th calendar day, inclusive, of such month. The Trustee on behalf of the
Trust shall be obligated to sell such Mortgage Loan upon the exercise of the
Option (whether exercised by the original holder thereof or by a holder that
acquired such Option by assignment), but shall have no authority to sell such
Mortgage Loan other than in connection with the exercise of an Option (or in
connection with a repurchase of a Mortgage Loan under Article II, an optional
termination pursuant to Section 10.1 or a qualified liquidation of a REMIC Pool)
or if
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such Mortgage Loan is an A Note, to the holder of the related B Note pursuant to
the terms of the related Intercreditor Agreement. Any Option Holder that
exercises the Option shall be required to purchase the applicable Mortgage Loan
on the 4th Business Day after such exercise. If any Option Holder desires to
waive its right to exercise the Option, then it shall so notify the Trustee in
writing, and the Trustee shall promptly notify the next party eligible to hold
the Option set forth above of its rights hereunder. Any of the parties eligible
to hold the Option set forth above may at any time notify the Trustee in writing
of its desire to exercise the Option, and the Trustee shall promptly notify (i)
the current Option Holder (and the other parties eligible to hold the Option)
and (ii) solely with respect to an Option to purchase an A Note, the holder of
the related B Note, of such party's desire to exercise the Option; provided that
none of the Trustee, the Master Servicer or the Special Servicer shall disclose
the Option Purchase Price to the holder of such related B Note. If the Option
Holder neither (i) exercises the Option nor (ii) surrenders its right to
exercise the Option within 3 Business Days of its receipt of that notice, then
the Option Holder's right to exercise the Option shall lapse, and the Trustee
shall promptly notify the next party eligible to hold the Option (and the other
parties eligible to hold the Option) of its rights thereunder. The Certificate
Registrar shall notify the Trustee as to the identity of the holder of
Certificates evidencing the greatest percentage interest in the Controlling
Class for purposes of determining an Option Holder.
(b) The Option Purchase Price shall be an amount equal to
the fair value of the related Mortgage Loan, as determined by the Special
Servicer. Prior to the Special Servicer's determination of fair value referred
to above, the fair value of a Mortgage Loan shall be deemed to be an amount
equal to the Purchase Price plus (i) any prepayment penalty or yield maintenance
charge then payable upon the prepayment of such Mortgage Loan and (ii) the
reasonable fees and expenses of the Special Servicer, the Master Servicer and
the Trustee incurred in connection with the sale of the Mortgage Loan. The
Special Servicer shall determine the fair value of a Mortgage Loan on the later
of (A) as soon as reasonably practical upon the Mortgage Loan becoming 60 days
delinquent or upon the Balloon Payment becoming delinquent and (B) the date that
is 75 days after the Special Servicer's receipt of the Servicer Mortgage File
relating to such Mortgage Loan, and the Special Servicer shall promptly notify
the Option Holder (and the Trustee and each of the other parties set forth above
that could become the Option Holder) of (i) the Option Purchase Price and (ii)
if such Mortgage Loan is an A Note, that the A Note is subject to the terms of
the related Intercreditor Agreement and that any purchaser of the A Note will be
subject to such Intercreditor Agreement. The Special Servicer is required to
recalculate the fair value of the Mortgage Loan if there has been a material
change in circumstances or the Special Servicer has received new information
(including, without limitation, any cash bids received from the holder of the
related B Note in connection with an A Note), either of which has a material
effect on the fair value, provided that the Special Servicer shall be required
to recalculate the fair value of the Mortgage Loan if the time between the date
of last determination of the fair value of the Mortgage Loan and the date of the
exercise of the Option has exceeded 60 days. Upon any recalculation, the Special
Servicer shall be required to promptly notify in writing each Option Holder (and
the Trustee and each of the other parties set forth above that could become the
Option Holder) of the revised Option Purchase Price. Any such recalculation of
the fair value of the Mortgage Loan shall be deemed to renew the Option in its
original priority at the recalculated price with respect to any party as to
which the Option had previously expired or been waived, unless the Option has
previously been exercised by an Option Holder at a higher Option Purchase Price.
In determining fair value, the Special Servicer shall take into account, among
other factors, the results of any Appraisal or updated Appraisal
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that it or the Master Servicer may have obtained in accordance with this
Agreement within the prior twelve months; any views on fair value expressed by
Independent investors in mortgage loans comparable to the Mortgage Loan
(provided that the Special Servicer shall not be obligated to solicit such
views); the period and amount of any delinquency on the affected Mortgage Loan;
whether to the Special Servicer's actual knowledge, the Mortgage Loan is in
default to avoid a prepayment restriction; the physical condition of the related
Mortgaged Property; the state of the local economy; the expected recoveries from
the Mortgage Loan if the Special Servicer were to pursue a workout or
foreclosure strategy instead of the Option being exercised; and the Trust's
obligation to dispose of any REO Property as soon as practicable consistent with
the objective of maximizing proceeds for all Certificateholders, but in no event
later than the three-year period (or such extended period) specified in Section
9.15. If the Mortgage Loan as to which the Option relates is the RSA Pari Passu
Loan, then the Option Holder, in connection with its exercise of such option,
shall also be required to purchase the RSA Companion Loan. Pursuant to the
LB-UBS Series 2003-C5 Pooling and Servicing Agreement, if the holder of the
option thereunder repurchases a Xxxx Xxxxxxx Tower Companion Loan in connection
with its exercise of such option, then the holder of the option shall also be
required to purchase the Xxxx Xxxxxxx Tower Pari Passu Loan.
(c) Any Option relating to a Mortgage Loan shall be
assignable to a third party (including, without limitation, in connection with
an A Note, the holder of the related B Note and in connection with the RSA Pari
Passu Loan, the holder of the RSA Companion Loan) by the Option Holder at its
discretion at any time after its receipt of notice from the Special Servicer
that an Option is exercisable with respect to a specified Mortgage Loan, and
upon such assignment such third party shall have all of the rights granted to
the Option Holder hereunder in respect of the Option. Such assignment shall only
be effective upon written notice (together with a copy of the executed
assignment and assumption agreement) being delivered to the Trustee, the Master
Servicer and the Special Servicer, and none of such parties shall be obligated
to recognize any entity as an Option Holder absent such notice.
(d) If the Special Servicer, the holder of Certificates
representing the greatest percentage interest in the Controlling Class or an
Affiliate of either thereof elects to exercise the Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Appraisal or other expert in real estate matters selected by the
Trustee with reasonable care and retained by the Trustee at the expense of the
party exercising the Option. The Trustee may also rely on the most recent
Appraisal of the related Mortgaged Property that was prepared in accordance with
this Agreement. If the Trustee were to determine that the Option Purchase Price
does not constitute a fair price, then the Special Servicer shall redetermine
the fair value taking into account the objections of the Trustee.
(e) The Option shall terminate, and shall not be
exercisable as set forth in clause (a) above (or if exercised, but the purchase
of the related Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if the Mortgage Loan to which it relates is no longer
delinquent as set forth above because the Mortgage Loan has (i) become a
Rehabilitated Mortgage Loan, (ii) been subject to a workout arrangement, (iii)
been foreclosed upon or otherwise resolved (including by a full or discounted
pay-off) or (iv) been purchased by
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the related Seller pursuant to Section 2.3. In addition, the Option with respect
to an A Note shall terminate upon the purchase of the A Note by the holder of
the related B Note pursuant to the related Intercreditor Agreement.
(f) Unless and until an Option Holder exercises an Option,
the Special Servicer shall continue to service and administer the related
Mortgage Loan in accordance with the Servicing Standard and this Agreement, and
shall pursue such other resolution or recovery strategies, including workout or
foreclosure, as is consistent with this Agreement and the Servicing Standard.
SECTION 9.37 OPERATING ADVISER; ELECTIONS.
(a) In accordance with Section 9.37(c), the
Certificateholders representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class may elect the Operating Adviser. The
Operating Adviser shall be elected for the purpose of receiving reports and
information from the Special Servicer in respect of the Specially Serviced
Mortgage Loans.
(b) The initial Operating Adviser is ARCap CMBS Fund REIT,
Inc. The Controlling Class shall give written notice to the Trustee, the Paying
Agent and the Master Servicer of the appointment of any subsequent Operating
Adviser (in order to receive notices hereunder). If a subsequent Operating
Adviser is not so appointed, an election of an Operating Adviser also shall be
held. Notice of the meeting of the Holders of the Controlling Class shall be
mailed or delivered to each Holder by the Paying Agent, not less than 10 nor
more than 60 days prior to the meeting. The notice shall state the place and the
time of the meeting, which may be held by telephone. A majority of Certificate
Balance of the Certificates of the then Controlling Class, present in person or
represented by proxy, shall constitute a quorum for the nomination of an
Operating Adviser. At the meeting, each Holder shall be entitled to nominate one
Person to act as Operating Adviser. The Paying Agent shall cause the election of
the Operating Adviser to be held as soon thereafter as is reasonably
practicable.
(c) Each Holder of the Certificates of the Controlling
Class shall be entitled to vote in each election of the Operating Adviser. The
voting in each election of the Operating Adviser shall be in writing mailed,
telecopied, delivered or sent by courier and actually received by the Paying
Agent on or prior to the date of such election. Immediately upon receipt by the
Paying Agent of votes (which have not been rescinded) from the Holders of
Certificates representing more than 50% of the Certificate Balance of the
Certificates of the then Controlling Class which are cast for a single Person,
such Person shall be, upon such Person's acceptance, the Operating Adviser. The
Paying Agent shall promptly notify the Trustee of the identity of the Operating
Adviser. Until an Operating Adviser is elected by Holders of Certificates
representing more than 50% of the Certificate Balance of the Certificates of the
then Controlling Class or in the event that an Operating Adviser shall have
resigned or been removed and a successor Operating Adviser shall not have been
elected, there shall be no Operating Adviser.
(d) The Operating Adviser may be removed at any time by the
written vote, copies of which must be delivered to the Paying Agent, of more
than 50% of the Certificate Balance of the Holders of the Certificates of the
then Controlling Class.
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(e) The Paying Agent shall act as judge of each election
and, absent manifest error, the determination of the results of any election by
the Paying Agent shall be conclusive. Notwithstanding any other provisions of
this Section 9.37, the Paying Agent may make such reasonable regulations as it
may deem advisable for any election.
(f) Notwithstanding any provision of this Section 9.37 or
any other provision of this Agreement to the contrary, at any time that the
Special Servicer has been elected as Operating Adviser or no Operating Adviser
has been elected, (i) the Special Servicer shall not be required to deliver
notices or information to, or obtain the consent or approval of, the Operating
Adviser and (ii) to the extent any Person other than the Special Servicer is
otherwise required hereunder to provide notices or information to, or obtain the
consent or approval of, the Operating Adviser, such Person shall be required to
provide such notices or information to, or obtain the consent or approval of,
the Special Servicer.
SECTION 9.38 LIMITATION ON LIABILITY OF OPERATING ADVISER.
The Operating Adviser shall have no liability to the Trust, the holder of the
RSA Companion Loan, the holder of any B Note or the Certificateholders for any
action taken, or for refraining from the taking of any action, in good faith and
using reasonable business judgment pursuant to this Agreement, or using
reasonable business judgment. By its acceptance of a Certificate, each
Certificateholder (and Certificate Owner) confirms its understanding that the
Operating Adviser may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates and that the
Operating Adviser may have special relationships and interests that conflict
with those of Holders of some Classes of the Certificates and the holder of the
RSA Companion Loan and each holder of a B Note (if any) and each
Certificateholder (and Certificate Owner) agrees to take no action against the
Operating Adviser based upon such special relationship or conflict.
SECTION 9.39 DUTIES OF OPERATING ADVISER. The Operating
Adviser may advise the Special Servicer with respect to the following actions of
the Special Servicer and the Special Servicer will not be permitted to take any
of the following actions unless and until it has notified the Operating Adviser
in writing and such Operating Adviser has not objected in writing (i) within 5
Business Days of having been notified thereof in respect of actions relating to
non-Specially Serviced Mortgage Loans (which 5 Business Day period shall run
concurrently with the time periods set forth in the Primary Servicing Agreement
with respect to such actions) and (ii) within 10 Business Days of having been
notified thereof in respect of actions relating to Specially Serviced Mortgage
Loans and having been provided with all reasonably requested information with
respect thereto (it being understood and agreed that if such written objection
has not been received by the Special Servicer within such 5 Business Day or 10
Business Day period, as applicable, then the Operating Adviser's approval will
be deemed to have been given):
(i) any foreclosure upon or comparable conversion
(which may include acquisition of an REO Property) of the ownership of
properties securing such of the Specially Serviced Mortgage Loans as come into
and continue in default;
(ii) any modification, amendment or waiver, or
consent to modification, amendment or waiver, of a Money Term of a Mortgage Loan
or a modification consisting of the extension of the original Maturity Date of a
Mortgage Loan;
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(iii) any proposed sale of a Defaulted Mortgage Loan
(other than upon termination of the Trust pursuant to Article X);
(iv) any determination to bring an REO Property into
compliance with Environmental Laws;
(v) any release of or acceptance of substitute or
additional collateral for a Mortgage Loan that is not otherwise expressly
provided for under the Mortgage Loan documents;
(vi) any acceptance of a discounted payoff;
(vii) any waiver or consent to waiver of a "due-on-
sale" or "due-on-encumbrance" clause;
(viii) any acceptance or consent to acceptance of an
assumption agreement releasing a Mortgagor from liability under a Mortgage Loan;
(ix) any release of collateral for a Specially
Serviced Mortgage Loan (other than in accordance with the terms of or upon
satisfaction of, such Mortgage Loan);
(x) any franchise changes or certain management
company changes for which the Special Servicer is required to consent;
(xi) releases of any Escrow Accounts, Reserve
Accounts or Letters of Credit that are not in compliance with the related
Mortgage Loan documents; and
(xii) any determination as to whether any type of
property-level insurance is required under the terms of any Mortgage Loan, is
available at commercially reasonable rates, is available for similar properties
in the area in which the related Mortgaged Property is located or any other
determination or exercise of discretion with respect to property-level
insurance.
Notwithstanding the foregoing, the Operating Adviser shall not
be entitled to the consultation rights described above in respect of any
non-Specially Serviced Mortgage Loan that has an unpaid Principal Balance of
less than $2,500,000.
With respect to items (vii), (viii) and (ix), the Operating
Adviser shall be subject to the same time periods for advising the Special
Servicer with respect to any such matters as are afforded to the Special
Servicer pursuant to Section 8.7, which periods shall be co-terminous with those
of Special Servicer. In addition, the Operating Adviser may direct the Trustee
to remove the Special Servicer at any time upon the appointment and acceptance
of such appointment by a successor to the Special Servicer; provided that, prior
to the effectiveness of any such appointment, the Trustee and the Paying Agent
shall have received Rating Agency Confirmation from each Rating Agency. The
Operating Adviser shall pay any costs and expenses incurred by the Trust in
connection with the removal and appointment of a Special Servicer (unless such
removal is based on any of the events or circumstances set forth in Section
9.30(b)). The Trustee shall notify the Paying Agent promptly upon its receipt of
the direction set forth above.
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Notwithstanding anything herein to the contrary, no advice,
direction or objection from the Operating Adviser, as contemplated by this
Section 9.39, may (and the Special Servicer shall ignore and act without regard
to any such advice, direction or objection that the Special Servicer has
determined, in its reasonable, good faith judgment, will) require or cause the
Special Servicer to violate any provision of this Agreement or the Mortgage
Loans, including the Special Servicer's obligation to act in accordance with the
Servicing Standard.
SECTION 9.40 RIGHTS OF THE HOLDER OF A B NOTE. With respect
to each A/B Mortgage Loan (if any), pursuant to the related Intercreditor
Agreement, the holder of the B Note may advise the Master Servicer (with respect
to an A/B Mortgage Loan that is not a Specially Serviced Mortgage Loan) or the
Special Servicer (with respect to A/B Mortgage Loans that are Specially Serviced
Mortgage Loans), as applicable, with respect to the following actions of the
Master Servicer or Special Servicer, as applicable, and neither the Master
Servicer nor the Special Servicer shall be permitted to take any of the
following actions with respect to the A/B Mortgage Loan unless and until it has
notified the holder of the B Note in writing and the holder of the B Note has
not objected in writing within ten (10) Business Days of having been notified
thereof and having been provided with all reasonably requested information with
respect thereto (it being understood and agreed that if such written objection
has not been received by the Master Servicer or Special Servicer, as applicable,
within such ten (10) Business Day period, then the holder of the B Note's
approval shall be deemed to have been given):
(a) any foreclosure upon or comparable conversion (which
may include the acquisition of an REO Property) of the ownership of the
Mortgaged Property and the other collateral securing the A/B Mortgage Loan;
(b) any modification, amendment or waiver, or consent to
modification, amendment or waiver, of a Money Term or any material non-monetary
term (including any material term relating to insurance) of the Mortgage Loan,
any related Companion Loan or the related B Note;
(c) any proposed sale of any Mortgaged Property after it
becomes an REO Property (other than in connection with the termination of the
Trust Fund;
(d) any acceptance of a discounted payoff on the related
Mortgage Loan, any related Companion Loan or the related B Note;
(e) any determination to bring the related Mortgaged
Property or the related REO Property into compliance with Environmental Laws or
to otherwise address Hazardous Materials at the Mortgaged Property or the
related REO Property;
(f) any release of collateral for the related A/B Mortgage
Loan (other than in accordance with the terms of, or upon satisfaction of, such
A/B Mortgage Loan) other than releases in the nature of a curb cut, a
non-material easement, a right-of-way or other non-material portion of the
collateral securing the A/B Mortgage Loan;
(g) any release of or acceptance of substitute or
additional collateral for the related A/B Mortgage Loan (other than in
accordance with the terms thereof);
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(h) any waiver or consent to waiver of any rights under a
"due-on-sale" or "due-on-encumbrance" clause for the A/B Mortgage Loan;
(i) any acceptance of an assumption agreement releasing
such Mortgage Loan borrower from liability under such A/B Mortgage Loan;
(j) any renewal or replacement of the then existing
insurance policies (to the extent that such renewal or replacement policy does
not comply with the terms of the related Mortgage Loan documents) or any waiver,
modification or amendment of any insurance requirements under the Mortgage Loan
documents;
(k) any approval of a material capital expenditure;
(l) any application of funds in an escrow account to repay
any portion of the principal of any Mortgage Loan;
(m) any replacement of the property manager;
(n) any approval of the incurrence of additional
indebtedness secured by a Mortgaged Property, if approval is required by the
Mortgage Loan documents;
(o) any adoption or approval of a plan in bankruptcy of the
related Mortgagor;
(p) any franchise changes or certain management company
changes for which the Special Servicer is required to consent; and
(q) releases of any Escrow Accounts, Reserve Accounts or
Letters of Credit.
The holder of the B Note, if any, has agreed pursuant to the
related Intercreditor Agreement that it will provide the Master Servicer or the
Special Servicer, as applicable, with its response within ten (10) Business Days
after its receipt of any such proposal and any back-up materials and shall be
deemed not to have responded if no response is received within such ten (10)
Business Days.
There are no A/B Mortgage Loans in the Trust.
Notwithstanding the foregoing, if the Master Servicer or
Special Servicer, as applicable, determines that immediate action is necessary
to protect the interest of the Certificateholders and the holder of any related
Companion Loan (as a collective whole), then the Master Servicer or Special
Servicer, as applicable may take any such action without waiting for the
response of the holder of the B Note.
In addition, with respect to the A/B Mortgage Loan, the holder
of the B Note may direct the Master Servicer or Special Servicer, as applicable,
to take, or to refrain from taking, such actions as the holder of the B Note may
deem advisable or as to which provision is otherwise made herein. Upon
reasonable request, the Master Servicer or Special Servicer, as applicable,
shall, with respect to the A/B Mortgage Loan, provide the holder of the B Note
with any information in the Master Servicer's or Special Servicer's, as
applicable, possession with respect to such matters, including its reasons for
determining to take a proposed action.
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In the event that the holder of the B Note shall direct the
Master Servicer to take any action (other than those described in clauses (a)
through (q) of the fourth preceding paragraph), the Master Servicer shall be
entitled to receive reimbursement from collections on and other proceeds of the
B Note for (i) its reasonable out-of-pocket expenses incurred in taking such
action and (ii) to the extent that such action constitutes an extraordinary
action not in the ordinary course of administering and servicing such mortgage
loan, other reasonable costs incurred by the Master Servicer in taking such
action. The Master Servicer shall notify the holder of the B Note, prior to
taking the related action, if the Master Servicer anticipates that it will seek
reimbursement therefor under the preceding sentence, and of the estimated amount
of such reimbursement, and shall further notify the holder of the B Note if it
intends to obtain actual reimbursement in excess of the estimated amount.
Notwithstanding anything herein to the contrary, no advice,
direction or objection from the holder of the B Note, as contemplated by this
Section 9.40, may (and the Master Servicer and Special Servicer, as applicable,
shall ignore and act without regard to any such advice, direction or objection
that the Master Servicer or Special Servicer, as applicable, has determined, in
its reasonable, good faith judgment, will) require or cause the Master Servicer
or Special Servicer to violate any provision of this Agreement or the Mortgage
Loans, including the Master Servicer's and Special Servicer's obligation to act
in accordance with the Servicing Standard. The Special Servicer will not be
obligated to seek approval from the holder of the B Note, as contemplated above,
for any actions to be taken by the Special Servicer with respect to the A/B
Mortgage Loan if (i) the Special Servicer has, as described above, notified the
holder of the B Note in writing of various actions that the Special Servicer
proposes to take with respect to the workout or liquidation of the A/B Mortgage
Loan and (ii) for 60 days following the first such notice, the holder of the B
Note has objected to all of those proposed actions and has failed to suggest any
alternative actions that the Special Servicer considers to be consistent with
the Servicing Standard. Furthermore, the rights of the holder of the B Note
under this Section 9.40 shall terminate (a "Control Appraisal Event") if (a)(1)
the initial unpaid principal of the B Note minus (2) the sum of (x) any
prepayments allocated to, and received on, the B Note, (y) any B Note Appraisal
Reduction and (z) any realized losses allocated to the B Note under this
Agreement is less than (b) 25% of (1) the initial unpaid principal of the B Note
less (2) any prepayments (other than prepayments constituting all or a portion
of the Maximum Prepayable Amount) allocated to, and received on, the B Note made
by the related Mortgagor.
ARTICLE II
PURCHASE AND TERMINATION OF THE TRUST
SECTION 00.0 XXXXXXXXXXX XX XXXXX XXXX XXXXXXXXXX OR
LIQUIDATION OF ALL MORTGAGE LOANS.
(a) The obligations and responsibilities of the Trustee and
the Paying Agent created hereby (other than the obligation of the Paying Agent,
to make payments to the Class R-I Certificateholders, the Class R-II
Certificateholders and REMIC III Certificateholders as set forth in Section 10.2
and other than the obligations in the nature of information or tax reporting)
shall terminate on the earliest of (i) the later of (A) the final payment or
other liquidation of the last Mortgage Loan remaining in the Trust (and final
distribution to the Certificateholders) and
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(B) the disposition of all REO Property (and final distribution to the
Certificateholders) or (ii) the sale of the property held by the Trust in
accordance with Section 10.1(b) or (iii) the termination of the Trust pursuant
to Section 10.1(c) below; provided that in no event shall the Trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
(b) The Master Servicer shall give the Trustee, the
Luxembourg Paying Agent and the Paying Agent notice of the date when the
Aggregate Principal Balance of the Mortgage Loans is less than or equal to one
percent (1%) of the initial Aggregate Principal Balance of the Mortgage Loans as
of the Cut-Off Date. The Paying Agent shall promptly forward such notice to the
Trustee, the Depositor, the Holder of a majority of the Controlling Class, the
Master Servicer, the Special Servicer and the Holders of the Class R-I
Certificates; and the Holder of a majority of the Controlling Class, the Master
Servicer, the Special Servicer and the Holders of the Class R-I Certificates, in
such priority (and in the case of the Class R-I Certificateholders, a majority
of the Class R-I Certificateholders), may purchase, in whole only, the Mortgage
Loans and any other property, if any, remaining in the Trust. If any party
desires to exercise such option, it will notify the Trustee who will notify any
party with a prior right to exercise such option. If any party that has been
provided notice by the Trustee (excluding the Depositor) notifies the Trustee
within ten Business Days after receiving notice of the proposed purchase that it
wishes to purchase the assets of the Trust, then such party (or, in the event
that more than one of such parties notifies the Trustee that it wishes to
purchase the assets of the Trust, the party with the first right to purchase the
assets of the Trust) may purchase the assets of the Trust in accordance with
this Agreement. Upon the Paying Agent's receipt of the Termination Price set
forth below, the Trustee shall promptly release or cause to be released to the
Master Servicer for the benefit of the Holder of the majority of the Class R-I
Certificates, the Special Servicer or the Master Servicer, as the case may be,
the Mortgage Files pertaining to the Mortgage Loans. The "Termination Price"
shall equal 100% of the aggregate Principal Balances of the Mortgage Loans
(other than Mortgage Loans as to which a Final Recovery Determination has been
made) on the day of such purchase plus accrued and unpaid interest thereon at
the applicable Mortgage Rates (or Mortgage Rates less the Master Servicing Fee
Rate if the Master Servicer is the purchaser), with respect to the Mortgage
Loans to the Due Date for each Mortgage Loan ending in the Collection Period
with respect to which such purchase occurs, plus unreimbursed Advances and
interest on such unreimbursed Advances at the Advance Rate, and the fair market
value of any other property remaining in REMIC I. The Trustee shall consult with
the Placement Agents and the Underwriters or their respective successors, as
advisers, in order for the Trustee to determine whether the fair market value of
the property constituting the Trust has been offered; provided that, if any
Placement Agent or any Underwriter or an Affiliate of the Placement Agent or the
Underwriters is exercising its right to purchase the Trust assets, the Trustee
shall consult with the Operating Adviser in order for the Trustee to determine
the fair market value, provided that the Operating Adviser is not an Affiliate
of the Class R-I Holder, the Special Servicer or the Master Servicer, or the
Trustee (the fees and expenses of which shall be paid for by buyer of the
property). As a condition to the purchase of the Trust pursuant to this Section
10.1(b), the Holder of the majority of the Class R-I Certificates, the Special
Servicer or the Master Servicer, as the case may be, must deliver to the Trustee
an Opinion of Counsel, which shall be at the expense of such Holders, the
Special Servicer or the Master Servicer, as the case may be, stating that such
termination will be a "qualified liquidation" under section 860F(a)(4) of the
Code. Such purchase shall be made in accordance with Section 10.3.
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(c) If at any time the Holders of the Class R-I
Certificates own 100% of the REMIC III Certificates such Holders may terminate
REMIC I (which will in turn result in the termination of REMIC II and REMIC III)
upon (i) the delivery to the Trustee and the Depositor of an Opinion of Counsel
(which opinion shall be at the expense of such Holders) stating that such
termination will be a "qualified liquidation" of each REMIC under Section 860F
of the Code, and (ii) the payment of any and all costs associated with such
termination. Such termination shall be made in accordance with Section 10.3.
(d) Upon the termination of the Trust, any funds or other
property held by the Class N Grantor Trust shall be distributed to the Class N
Certificateholders, on a pro rata basis, whether or not the respective
Certificate Balances thereof have been reduced to zero.
(e) Upon the sale of the A Note relating to an A/B Mortgage
Loan by the Trust or the payment in full of such A Note, the related B Note
shall no longer be subject to this Agreement and shall no longer be serviced by
the Master Servicer or the Special Servicer.
SECTION 10.2 PROCEDURE UPON TERMINATION OF TRUST.
(a) Notice of any termination pursuant to the provisions of
Section 10.1, specifying the Distribution Date upon which the final distribution
shall be made, shall be given promptly by the Trustee by first class mail to the
Paying Agent, the Rating Agencies, the Class R-I, Class R-II and REMIC III
Certificateholders mailed no later than ten days prior to the date of such
termination. Such notice shall specify (A) the Distribution Date upon which
final distribution on the Class R-I, Class R-II and REMIC III Certificates will
be made, and upon presentation and surrender of the Class R-I, Class R-II and
REMIC III Certificates at the office or agency of the Certificate Registrar
therein specified, and (B) that the Record Date otherwise applicable to such
Distribution Date is not applicable, distribution being made only upon
presentation and surrender of the Class R-I, Class R-II and REMIC III
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Depositor and the
Certificate Registrar at the time such notice is given to Holders of the Class
R-I, Class R-II and REMIC III Certificates. Upon any such termination, the
duties of the Certificate Registrar with respect to the Class R-I, Class R-II
and REMIC III Certificates shall terminate and the Trustee shall terminate, or
request the Master Servicer and the Paying Agent to terminate, the Certificate
Account and the Distribution Account and any other account or fund maintained
with respect to the Certificates, subject to the Paying Agent's obligation
hereunder to hold all amounts payable to the Class R-I, Class R-II and REMIC III
Certificateholders in trust without interest pending such payment.
(b) In the event that all of the Holders do not surrender
their certificates evidencing the Class R-I, Class R-II and REMIC III
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Certificate Registrar shall give a
second written notice to the remaining Class R-I, Class R-II and REMIC III
Certificateholders to surrender their certificates evidencing the Class R-I,
Class R-II and REMIC III Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
any Class R-I, Class R-II and REMIC III Certificates shall not have been
surrendered for cancellation, the Certificate Registrar may take appropriate
steps to contact the remaining Class R-I, Class R-II and REMIC III
Certificateholders concerning surrender of such certificates, and the cost
thereof shall be paid out of the amounts distributable
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to such Holders. If within two years after the second notice any such Class R-I,
Class R-II and REMIC III Certificates shall not have been surrendered for
cancellation, the Paying Agent shall, subject to applicable state law relating
to escheatment, hold all amounts distributable to such Holders for the benefit
of such Holders. No interest shall accrue on any amount held by the Trustee and
not distributed to a Class R-I, Class R-II or REMIC III Certificateholder due to
such Certificateholder's failure to surrender its Certificate(s) for payment of
the final distribution thereon in accordance with this Section. Any money held
by the Paying Agent pending distribution under this Section 10.2 after 90 days
after the adoption of a plan of complete liquidation shall be deemed for tax
purposes to have been distributed from the REMIC Pools and shall be beneficially
owned by the related Holder.
SECTION 10.3 ADDITIONAL TRUST TERMINATION REQUIREMENTS.
(a) The Trust and each REMIC shall be terminated in
accordance with the following additional requirements, unless at the request of
the Master Servicer or the Class R-I Certificateholders, as the case may be, the
Trustee seeks, and the Paying Agent subsequently receives an Opinion of Counsel
(at the expense of the Master Servicer or the Class R-I Certificateholders, as
the case may be), addressed to the Depositor, the Trustee and the Paying Agent
to the effect that the failure of the Trust to comply with the requirements of
this Section 10.3 will not (i) result in the imposition of taxes on "prohibited
transactions" on any REMIC Pool under the REMIC Provisions or (ii) cause any
REMIC Pool to fail to qualify as a REMIC at any time that any Certificates are
outstanding:
(i) Within 89 days prior to the time of the making
of the final payment on the REMIC III Certificates, the Master Servicer shall
prepare and the Trustee (on behalf of REMIC I, REMIC II or REMIC III) shall
adopt a plan of complete liquidation of the REMIC I Pool, meeting the
requirements of a qualified liquidation under the REMIC Provisions, which plan
need not be in any special form and the date of which, in general, shall be the
date of the notice specified in Section 10.2(a) and shall be specified in a
statement attached to the federal income tax return of each REMIC Pool;
(ii) At or after the date of adoption of such a plan
of complete liquidation and at or prior to the time of making of the final
payment on the REMIC III Certificates, the Trustee shall sell all of the assets
of the Trust for cash at the Termination Price; provided that if the Holders of
the Class R-I Certificates are purchasing the assets of the Trust, the amount to
be paid by such Holders may be paid net of the amount to be paid to such Holders
as final distributions on any Certificates held by such Holders;
(iii) At the time of the making of the final payment
on the Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, (A) to the Holders of the Class R-I Certificates all
assets of REMIC I remaining after such final payment of the REMIC I Regular
Interests, (B) to the Holders of the Class R-II Certificates all remaining
assets of REMIC II after such final payment of the REMIC II Regular Interests
and (C) to the Holders of the Class R-III Certificates all remaining assets of
REMIC III (in each case other than cash retained to meet claims), and the Trust
shall terminate at that time; and
(iv) In no event may the final payment on the REMIC I
Regular Interests, REMIC II Regular Interests or REMIC Regular Certificates or
the final distribution or
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credit to the Holders of the Residual Certificates, respectively, be made after
the 89th day from the date on which the plan of complete liquidation is adopted.
(b) By their acceptance of the Class R-I, Class R-II or
R-III Certificates, respectively, the Holders thereof hereby (i) authorize the
Trustee to take such action as may be necessary to adopt a plan of complete
liquidation of the REMIC Pool and (ii) agree to take such other action as may be
necessary to adopt a plan of complete liquidation of the Trust upon the written
request of the Depositor, which authorization shall be binding upon all
successor Class R-I, Class R-II and Class R-III Certificateholders,
respectively.
ARTICLE III
RIGHTS OF CERTIFICATEHOLDERS
SECTION 11.1 LIMITATION ON RIGHTS OF HOLDERS.
(a) The death or incapacity of any Certificateholder shall
not operate to terminate this Agreement or the Trust, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
take any action or proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) Except as otherwise expressly provided herein, no
Certificateholder, solely by virtue of its status as a Certificateholder, shall
have any right to vote or in any manner otherwise control the Master Servicer or
operation and management of the Trust, or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from time
to time as partners or members of an association, nor shall any
Certificateholder be under any liability to any third person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder, solely by virtue of its status as
Certificateholder, shall have any right by virtue or by availing of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement unless the
Holders of Certificates evidencing not less than 50% of the Aggregate Principal
Amount of the Certificates then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding and no direction inconsistent
with such written request has been given the Trustee during such sixty-day
period by such Certificateholders; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Agreement, except in the manner herein provided and for the benefit
of all
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Certificateholders. For the protection and enforcement of the provisions of this
Section, each and every Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 11.2 ACCESS TO LIST OF HOLDERS.
(a) If the Paying Agent is not acting as Certificate
Registrar, the Certificate Registrar will furnish or cause to be furnished to
the Trustee and the Paying Agent, within fifteen days after receipt by the
Certificate Registrar of a request by the Trustee or the Paying Agent, as the
case may be, in writing, a list, in such form as the Trustee or the Paying
Agent, as the case may be, may reasonably require, of the names and addresses of
the Certificateholders of each Class as of the most recent Record Date.
(b) If the Depositor, the Operating Adviser, the Special
Servicer, the Master Servicer, the Trustee or three or more Holders (hereinafter
referred to as "applicants," with a single Person which (together with its
Affiliates) is the Holder of more than one Class of Certificates being viewed as
a single "applicant" for these purposes) apply in writing to the Paying Agent
and such application states that the applicants desire to communicate with other
Holders with respect to their rights under this Agreement or under the
Certificates and is accompanied by a copy of the communication which such
applicants propose to transmit, then the Paying Agent shall, within five
Business Days after the receipt of such application, send, at such Person's
expense, the written communication proffered by the applicants to all
Certificateholders at their addresses as they appear in the Certificate
Register.
(c) Every Holder, by receiving and holding a Certificate,
agrees with the Depositor, the Certificate Registrar, the Paying Agent, the
Master Servicer and the Trustee that neither the Depositor, the Certificate
Registrar, the Paying Agent, the Master Servicer nor the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Certificateholders hereunder, regardless of the source from
which such information was derived.
SECTION 11.3 ACTS OF HOLDERS OF CERTIFICATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Depositor and
the Paying Agent. Such instrument or instruments (as the action embodies therein
and evidenced thereby) are herein sometimes referred to as an "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agents shall be sufficient for
any purpose of this Agreement and conclusive in favor of the Trustee, the
Depositor and the Paying Agent, if made in the manner provided in this Section.
The Trustee agrees to promptly notify the Depositor of any such instrument or
instruments received by it, and to promptly forward copies of the same.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments or deeds, certifying that the individual signing
such instrument or writing acknowledged to such notary public or other officer
the execution thereof. Whenever such execution is by an officer of a corporation
or a member of a partnership on behalf of such corporation or partnership, such
certificate or affidavit shall also constitute sufficient proof of such
officer's or member's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Certificates (notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Trustee) shall be proved by the Certificate Register, and neither the Trustee
nor the Depositor nor the Paying Agent shall be affected by any notice to the
contrary.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Certificate shall bind
every future Holder of the same Certificate and the Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, omitted or suffered to be done by the
Trustee, the Paying Agent or the Depositor in reliance thereon, whether or not
notation of such action is made upon such Certificate.
ARTICLE IV
REMIC AND GRANTOR TRUST ADMINISTRATION
The provisions of this Article XII shall apply to each REMIC
Pool.
SECTION 12.1 REMIC ADMINISTRATION.
(a) An election will be made by the Paying Agent on behalf
of the Trustee to treat the segregated pool of assets consisting of the Mortgage
Loans, such amounts as shall from time to time be held in the Certificate
Account and the Distribution Account, the Insurance Policies and any REO
Properties as a REMIC ("REMIC I") under the Code, other than any portion of the
foregoing amounts allocable to a B Note or the RSA Companion Loan. Such
elections will be made on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the REMIC I Interests are issued.
For purposes of such election, the REMIC I Regular Interests shall each be
designated as a separate Class of "regular interests" in REMIC I and the Class
R-I Certificates shall be designated as the sole Class of "residual interests"
in REMIC I. The Trustee and the Paying Agent shall not permit the creation of
any "interests" (within the meaning of Section 860G of the Code) in any of the
REMICs other than the REMIC I Regular Interests, the REMIC II Regular Interests,
the REMIC III Regular Interests and the Residual Certificates.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
("REMIC II") under the Code. Such election will be made on Form 1066 or other
appropriate federal tax or information return
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or any appropriate state return for the taxable year ending on the last day of
the calendar year in which the REMIC II Interests are issued. For the purposes
of such election, the REMIC II Regular Interests shall be designated as the
"regular interests" in REMIC II and the Class R-II Certificates shall be
designated as the sole Class of the "residual interests" in REMIC II.
An election will be made by the Paying Agent to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC ("REMIC III") under the Code. Such election will be made on Form 1066 or
other appropriate federal tax or information return or any appropriate state
return for the taxable year ending on the last day of the calendar year in which
the REMIC III Certificates are issued. For purposes of such election, the Class
A-1, Class A-2, Class A-3, Class A-4, Class X-1 (each Class X-1 Certificate
representing multiple "regular interests" in REMIC III, as set forth in the
Preliminary Statement), Class X-2 (each Class X-2 Certificate representing
multiple "regular interests" in REMIC III, as set forth in the Preliminary
Statement), Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class
J, Class K, Class L, Class M and Class N Certificates shall be designated as the
"regular interests" in REMIC III and the Class R-III Certificates shall be
designated as the sole Class of "residual interests" in REMIC III.
(b) The Closing Date is hereby designated as the "Startup
Day" of each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(c) The Paying Agent shall pay all routine tax related
expenses (not including any taxes, however denominated, including any additions
to tax, penalties and interest) of each REMIC Pool, excluding any professional
fees or extraordinary expenses related to audits or any administrative or
judicial proceedings with respect to each REMIC Pool that involve the Internal
Revenue Service or state tax authorities.
(d) The Paying Agent shall cause to be prepared, signed,
and timely filed with the Internal Revenue Service, on behalf of each REMIC
Pool, an application for a taxpayer identification number for such REMIC Pool on
Internal Revenue Service Form SS-4. The Paying Agent, upon receipt from the
Internal Revenue Service of the Notice of Taxpayer Identification Number
Assigned, shall promptly forward a copy of such notice to the Depositor and the
Master Servicer. The Paying Agent shall prepare and file Form 8811 on behalf of
each REMIC Pool and shall designate an appropriate Person to respond to
inquiries by or on behalf of Certificateholders for original issue discount and
related information in accordance with applicable provisions of the Code.
(e) The Paying Agent shall prepare and file all of each
REMIC Pool's federal and state income or franchise tax and information returns
as such REMIC Pool direct representative; the expenses of preparing and filing
such returns shall be borne by the Paying Agent, except that if additional state
tax returns are required to be filed in more than three states, the Paying Agent
shall be entitled, with respect to any such additional filings, to (i) be paid a
reasonable fee and (ii) receive its reasonable costs and expenses, both as
amounts reimbursable pursuant to Section 5.2(a)(vi) hereof. The Depositor, the
Master Servicer and the Special Servicer shall provide on a timely basis to the
Paying Agent or its designee such information with respect to the Trust or any
REMIC Pool as is in its possession, which the Depositor or the Master Servicer
and the Special Servicer has received or prepared by virtue of its role as
Depositor or Master Servicer and the Special Servicer hereunder and reasonably
requested by the
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Paying Agent to enable it to perform its obligations under this subsection, and
the Paying Agent shall be entitled to conclusively rely on such information in
the performance of its obligations hereunder. The Depositor shall indemnify the
Trust, the Trustee, the Paying Agent and the Fiscal Agent for any liability or
assessment against any of them or cost or expense (including attorneys' fees)
incurred by them resulting from any error resulting from bad faith, negligence,
or willful malfeasance of the Depositor in providing any information for which
the Depositor is responsible for preparing. The Master Servicer and the Special
Servicer shall indemnify the Trustee, the Fiscal Agent, the Paying Agent and the
Depositor for any liability or assessment against the Trustee, the Fiscal Agent,
the Depositor, the Paying Agent or any REMIC Pool and any expenses incurred in
connection with such liability or assessment (including attorneys' fees)
resulting from any error in any of such tax or information returns resulting
from errors in the information provided by the Master Servicer or the Special
Servicer, as the case may, be or caused by the negligence, willful misconduct or
bad faith of the Master Servicer or the Special Servicer, as the case may be.
The Paying Agent shall indemnify the Master Servicer, the Depositor or any REMIC
Pool for any expense incurred by the Master Servicer, the Depositor and any
REMIC Pool resulting from any error in any of such tax or information returns
resulting from errors in the preparation of such returns caused by the
negligence, willful misconduct or bad faith of the Paying Agent. Each
indemnified party shall immediately notify the indemnifying party or parties of
the existence of a claim for indemnification under this Section 12.1(e), and
provide the indemnifying party or parties, at the expense of such indemnifying
party or parties, an opportunity to contest the tax or assessment or expense
giving rise to such claim, provided that the failure to give such notification
rights shall not affect the indemnification rights in favor of any REMIC Pool
under this Section 12.1(e). Any such indemnification shall survive the
resignation or termination of the Master Servicer, the Paying Agent or the
Special Servicer, or the termination of this Agreement.
(f) The Paying Agent shall perform on behalf of each REMIC
all reporting and other tax compliance duties that are the responsibility of
such REMIC Pool under the Code, REMIC Provisions, or other compliance guidance
issued by the Internal Revenue Service or any state or local taxing authority.
Among its other duties, the Paying Agent shall provide (i) to the Internal
Revenue Service or other Persons (including, but not limited to, the Transferor
of a Residual Certificate, to a Disqualified Organization or to an agent that
has acquired a Residual Certificate on behalf of a Disqualified Organization)
such information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Disqualified Organization and (ii) to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
(g) The Paying Agent shall forward to the Depositor copies
of quarterly and annual REMIC tax returns and Internal Revenue Service Form 1099
information returns and such other information within the control of the Paying
Agent as the Depositor may reasonably request in writing. Moreover, the Paying
Agent shall forward to each Certificateholder such forms and furnish such
information within its control as are required by the Code to be furnished to
them, shall prepare and file with the appropriate state authorities as may to
the actual knowledge of a Responsible Officer of the Paying Agent be required by
applicable law and shall prepare and disseminate to Certificateholders Internal
Revenue Service Forms 1099 (or otherwise furnish information within the control
of the Paying Agent) to the extent required by applicable law. The Paying Agent
will make available to any Certificateholder any tax related
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information required to be made available to Certificateholders pursuant to the
Code and any regulations thereunder.
(h) The Holder of more than 50% of the Percentage Interests
in Class R-I, Class R-II and Class R-III Certificates, respectively (or of the
greatest percentage of such Class R-I, Class R-II and Class R-III Certificates
if no Holder holds more than 50% thereof), shall be the applicable REMIC's Tax
Matters Person. The duties of the Tax Matters Person for each of the REMIC Pools
are hereby delegated to the Paying Agent and each Residual Certificateholder, by
acceptance of its Residual Certificate, agrees, on behalf of itself and all
successor holders of such Residual Certificate, to such delegation to the Paying
Agent as their agent and attorney in fact. If the Code or applicable regulations
prohibits the Paying Agent from signing any applicable Internal Revenue Service,
court or other administrative documents or from acting as Tax Matters Person (as
an agent or otherwise), the Paying Agent shall take whatever action is necessary
for the signing of such documents and designation of a Tax Matters Person,
including the designation of such Residual Certificateholder. The Paying Agent
shall not be required to expend or risk its own funds or otherwise incur any
other financial liability in the performance of its duties hereunder or in the
exercise of any of its rights or powers (except to the extent of the ordinary
expenses of performing its duties under this Agreement), if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(i) The Trustee, the Paying Agent, the Holders of the
Residual Certificates, the Master Servicer and the Special Servicer shall each
exercise reasonable care, to the extent within its control, and with respect to
each of the Trustee, Paying Agent, the Master Servicer and the Special Servicer,
within the scope of its express duties, and shall each act in accordance with
this Agreement and the REMIC Provisions in order to create and maintain the
status of each REMIC Pool as a REMIC and the Class N Grantor Trust as a grantor
trust or, as appropriate, adopt a plan of complete liquidation with respect to
each REMIC Pool.
(j) The Trustee, the Paying Agent, the Master Servicer, the
Special Servicer, the Fiscal Agent and the Holders of Residual Certificates
shall not take any action or fail to take any action or cause any REMIC Pool to
take any action or fail to take any action if any of such persons knows or
could, upon the exercise of reasonable diligence, know, that, under the REMIC
Provisions such action or failure, as the case may be, could (i) endanger the
status of any REMIC Pool as a REMIC, (ii) result in the imposition of a tax upon
any REMIC Pool (including but not limited to the tax on prohibited transactions
as defined in Code Section 860F(a)(2)) or (iii) endanger the status of the Class
N Grantor Trust as a grantor trust unless the Trustee and the Paying Agent have
received an Opinion of Counsel (at the expense of the party seeking to take such
action) to the effect that the contemplated action will not endanger such status
or result in the imposition of such a tax. Any action required under this
section which would result in an unusual or unexpected expense shall be
undertaken at the expense of the party seeking the Trustee, the Paying Agent or
the Holders of the Residual Certificates to undertake such action.
(k) In the event that any tax is imposed on any REMIC
created hereunder, including, without limitation, "prohibited transactions"
taxes as defined in Section 860F(a)(2) of the Code, any tax on "net income from
foreclosure property" as defined in Section 860G(c) of the Code, any taxes on
contributions to any REMIC created hereunder after the Startup Day pursuant to
Section 860G(d) of the Code, and any other tax imposed by the Code or any
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applicable provisions of state or local tax laws (other than any tax permitted
to be incurred by the Special Servicer pursuant to Section 9.14(e)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the Paying Agent, if such tax arises out of or results from a breach of any of
its obligations under this Agreement; (ii) the Special Servicer, if such tax
arises out of or results from a breach by the Special Servicer of any of its
obligations under this Agreement; (iii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under this Agreement; (iv) the Fiscal Agent, if such tax arises out of or
results from a breach by the Fiscal Agent of any of its obligations under this
Agreement; and (v) the Trust in all other instances. Any tax permitted to be
incurred by the Special Servicer pursuant to Section 9.14(e) shall be charged to
and paid by the Trust from the net income generated on the related REO Property.
Any such amounts payable by the Trust in respect of taxes shall be paid by the
Paying Agent out of amounts on deposit in the Distribution Account.
(l) The Paying Agent and, to the extent that records are
maintained by the Master Servicer or the Special Servicer in the normal course
of its business, the Master Servicer and the Special Servicer shall, for federal
income tax purposes, maintain books and records with respect to each REMIC Pool
on a calendar year and on an accrual basis. Notwithstanding anything to the
contrary contained herein, except to the extent provided otherwise in the
Mortgage Loans or in the Mortgages, all amounts collected on the Mortgage Loans
shall, for federal income tax purposes, be allocated first to interest due and
payable on the Mortgage Loans (including interest on overdue interest, other
than additional interest at a penalty rate payable following a default). The
books and records must be sufficient concerning the nature and amount of each
REMIC Pool's investments to show that such REMIC Pool has complied with the
REMIC Provisions.
(m) Neither the Trustee, the Paying Agent, the Master
Servicer nor the Special Servicer shall enter into any arrangement by which any
REMIC Pool will receive a fee or other compensation for services.
(n) In order to enable the Paying Agent to perform its
duties as set forth herein, the Depositor shall provide, or cause to be
provided, to the Paying Agent within ten (10) days after the Closing Date all
information or data that the Paying Agent reasonably determines to be relevant
for tax purposes on the valuations and offering prices of the Certificates,
including, without limitation, the yield, prepayment assumption, issue prices
and projected cash flows of the Certificates, as applicable, and the projected
cash flows of the Mortgage Loans. Thereafter, the Depositor shall provide to the
Paying Agent or its designee, promptly upon request therefor, any such
additional information or data within the Depositor's possession or knowledge
that the Paying Agent may, from time to time, reasonably request in order to
enable the Paying Agent to perform its duties as set forth herein. The Paying
Agent is hereby directed to use any and all such information or data provided by
the Depositor in the preparation of all federal and state income or franchise
tax and information returns and reports for each REMIC Pool to
Certificateholders as required herein. The Depositor hereby indemnifies the
Trustee, the Paying Agent, the Fiscal Agent, and each REMIC Pool for any losses,
liabilities, damages, claims, expenses (including attorneys' fees) or
assessments against the Trustee, the Paying Agent, the Fiscal Agent and each
REMIC Pool arising from any errors or miscalculations of the Paying Agent
pursuant to this Section that result from any failure of the Depositor to
provide, or to cause to be provided, accurate information or data to the Paying
Agent (but not resulting from the
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methodology employed by the Paying Agent) on a timely basis and such
indemnification shall survive the termination of this Agreement and the
termination or resignation of the Paying Agent and the Fiscal Agent.
The Paying Agent agrees that all such information or data so
obtained by it are to be regarded as confidential information and agrees that it
shall use its reasonable best efforts to retain in confidence, and shall ensure
that its officers, employees and representatives retain in confidence, and shall
not disclose, without the prior written consent of the Depositor, any or all of
such information or data, or make any use whatsoever (other than for the
purposes contemplated by this Agreement) of any such information or data without
the prior written consent of the Depositor, unless such information is generally
available to the public (other than as a result of a breach of this Section
12.1(n)) or is required by law or applicable regulations to be disclosed or is
disclosed (i) to independent auditors and accountants, counsel and other
professional advisers of the Paying Agent and its parent, or (ii) in connection
with its rights and obligations under this Agreement.
(o) At all times as may be required by the Code, the Master
Servicer will to the extent within its control and the scope of its duties more
specifically set forth herein, maintain substantially all of the assets of REMIC
I as "qualified mortgages" as defined in Section 860G(a)(3) of the Code and
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(p) For the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" for each Class of
Certificates representing a regular interest in REMIC III, for each Class of
REMIC I Regular Interests and for each Class of REMIC II Regular Interests is
the Rated Final Distribution Date; provided that the "latest possible maturity
date" for the Class X-2 Certificates is the Distribution Date in August 2011.
SECTION 12.2 PROHIBITED TRANSACTIONS AND ACTIVITIES. Neither
the Trustee, the Paying Agent, the Master Servicer nor the Special Servicer
shall permit the sale, disposition or substitution of any of the Mortgage Loans
(except in a disposition pursuant to (i) the foreclosure or default of a
Mortgage Loan, (ii) the bankruptcy or insolvency of any REMIC Pool, (iii) the
termination of any REMIC Pool in a "qualified liquidation" as defined in Section
860F(a)(4) of the Code, or (iv) a substitution pursuant to Article II hereof),
nor acquire any assets for the Trust, except as provided in Article II hereof,
nor sell or dispose of any investments in the Certificate Account or
Distribution Account for gain, nor accept any contributions to any REMIC Pool
(other than a cash contribution during the 3-month period beginning on the
Startup Day), unless it has received an Opinion of Counsel (at the expense of
the Person requesting such action) to the effect that such disposition,
acquisition, substitution, or acceptance will not (A) affect adversely the
status of any REMIC Pool as a REMIC or of the REMIC Certificates, other than the
Residual Certificates, as the regular interests therein, (B) affect the
distribution of interest or principal on the Certificates, (C) result in the
encumbrance of the assets transferred or assigned to any REMIC Pool (except
pursuant to the provisions of this Agreement) or (D) cause any REMIC Pool to be
subject to a tax on "prohibited transactions" or "prohibited contributions" or
other tax pursuant to the REMIC Provisions.
SECTION 12.3 MODIFICATIONS OF MORTGAGE LOANS. Notwithstanding
anything to the contrary in this Agreement, neither the Trustee, the Paying
Agent, the Master Servicer nor
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the Special Servicer shall permit any modification of a Money Term of a Mortgage
Loan or a Specially Serviced Mortgage Loan unless (i) the Trustee, the Special
Servicer, Paying Agent and the Master Servicer have received a
Nondisqualification Opinion or a ruling from the Internal Revenue Service (at
the expense of the party making the request that the Master Servicer or the
Special Servicer modify the Mortgage Loan or a Specially Serviced Mortgage Loan)
to the effect that such modification would not be treated as an exchange
pursuant to Section 1001 of the Code (or, if it would be so treated, would not
be treated as a "significant modification" for purposes of Section 1.860G-2(b)
of the Treasury Regulations) or (ii) such modification meets the requirements
set forth in Sections 8.18 or 9.5.
SECTION 12.4 LIABILITY WITH RESPECT TO CERTAIN TAXES AND LOSS
OF REMIC STATUS. In the event that any REMIC Pool fails to qualify as a REMIC,
loses its status as a REMIC, or incurs state or local taxes, or tax as a result
of a prohibited transaction or prohibited contribution subject to taxation under
the REMIC Provisions due to the negligent performance by either the Trustee or
the Paying Agent of its respective duties and obligations set forth herein, the
Trustee or the Paying Agent, as the case may be, shall be liable to the REMIC
Pools and the Holders of the Residual Certificates for any and all losses,
claims, damages, liabilities or expenses ("Losses") resulting from such
negligence and relating to the Residual Certificates; provided, however, that
the Trustee, or the Paying Agent, as applicable, shall not be liable for any
such Losses attributable to the action or inaction of the Master Servicer, the
Special Servicer, the Trustee (with respect to the Paying Agent), the Paying
Agent (with respect to the Trustee), the Depositor or the Holders of such
Residual Certificates nor for any such Losses resulting from any actions or
failure to act based upon reliance on an Opinion of Counsel or from
misinformation provided by the Master Servicer, the Special Servicer, the
Trustee (with respect to the Paying Agent), the Paying Agent (with respect to
the Trustee), the Depositor or such Holders of the Residual Certificates on
which the Trustee or the Paying Agent, as the case may be, has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies of
the Holders of the Residual Certificates now or hereafter existing at law or in
equity. The Trustee or the Paying Agent shall be entitled to intervene in any
litigation in connection with the foregoing and to maintain control over its
defense.
SECTION 12.5 CLASS N GRANTOR TRUST
(a) The assets of the Class N Grantor Trust, consisting of
the right to any Excess Interest in respect of the ARD Loans and the Excess
Interest Sub-account, shall be held by the Trustee and Paying Agent for the
benefit of the Holders of the Class N Grantor Trust Interest represented by the
Class N Certificates, which Class N Certificates, in the aggregate, will
evidence 100% beneficial ownership of such assets from and after the Closing
Date. It is intended that the portion of the Trust consisting of the Class N
Grantor Trust will be treated as a grantor trust for federal income tax
purposes, and each of the parties to this Agreement agrees that it will not take
any action that is inconsistent with establishing or maintaining such treatment.
Under no circumstances may the Trustee or the Paying Agent vary the assets of
the Class N Grantor Trust so as to take advantage of variations in the market so
as to improve the rate of return of Holders of the Class N Certificates. The
Trustee and Paying Agent shall be deemed to hold and shall account for the Class
N Grantor Trust separate and apart from the assets of any REMIC I, REMIC II and
REMIC III created hereunder.
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(b) The parties intend that the portions of the Trust
consisting of the Class N Grantor Trust shall constitute, and that the affairs
of the Trust (exclusive of the REMIC Pools) shall be conducted so as to qualify
such portion as, a "grantor trust" under the Code, and the provisions hereof
shall be interpreted consistently with this intention. In furtherance of such
intention, the Paying Agent shall furnish or cause to be furnished to the Class
N Certificateholders and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income and expenses relating to
their shares of the income and expenses of the Class N Grantor Trust, and with
respect to the Class N Grantor Trust, on the cash or accrual method of
accounting and so as to enable reporting to Holders of Class N Certificates
based on their annual accounting period, at the time or times and in the manner
required by the Code.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.1 BINDING NATURE OF AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
SECTION 13.2 ENTIRE AGREEMENT. This Agreement contains the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes all prior and contemporaneous
agreements, understandings, inducements and conditions, express or implied, oral
or written, of any nature whatsoever with respect to the subject matter hereof.
The express terms hereof control and supersede any course of performance or
usage of the trade inconsistent with any of the terms hereof.
SECTION 13.3 AMENDMENT.
(a) This Agreement may be amended from time to time by the
parties hereto, without notice to or the consent of any of the Holders, (i) to
cure any ambiguity, (ii) to cause the provisions herein to conform to or be
consistent with or in furtherance of the statements made with respect to the
Certificates, the Trust or this Agreement in the Private Placement Memorandum,
the Preliminary Prospectus Supplement, the Final Prospectus Supplement or the
Prospectus, or to correct or supplement any provision herein which may be
inconsistent with any other provisions herein, (iii) to amend any provision
hereof to the extent necessary or desirable to maintain the status of each REMIC
Pool as a REMIC (or the grantor trust created from the related portion of the
Trust) for the purposes of federal income tax law (or comparable provisions of
state income tax law), (iv) to make any other provisions with respect to matters
or questions arising under or with respect to this Agreement not inconsistent
with the provisions hereof, (v) to modify, add to or eliminate the provisions of
Article III relating to transfers of Residual Certificates, (vi) to amend any
provision herein to the extent necessary or desirable to list the Certificates
on a stock exchange, including, without limitation, the appointment of one or
more sub-paying agents and the requirement that certain information be delivered
to such sub-paying agents, (vii) to modify the provisions relating to the timing
of Advance reimbursements in order to conform them to the commercial
mortgage-backed securities industry standard for such provisions if (w) the
Depositor and the Master Servicer determine that that industry standard has
changed, (x) such modification will not result in an Adverse REMIC Event, as
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evidenced by an Opinion of Counsel, (y) each Rating Agency has delivered a
Rating Agency Confirmation with respect to such modification, and (z) the
Operating Adviser consents to such modification, or (viii) to make any other
amendment which does not adversely affect in any material respect the interests
of any Certificateholder (unless such Certificateholder consents). No such
amendment effected pursuant to clause (i), (ii) or (iv) of the preceding
sentence shall (A) adversely affect in any material respect the interests of any
Certificateholder not consenting thereto without the consent of 100% of the
Certificateholders (if adversely affected) or (B) adversely affect the status of
any REMIC Pool as a REMIC(or the grantor trust created from the related portion
of the Trust). Prior to entering into any amendment without the consent of
Holders pursuant to this paragraph, the Trustee may require an Opinion of
Counsel and a Nondisqualification Opinion (in the case of clauses (i), (ii) and
(iii), at the expense of the Depositor, and otherwise at the expense of the
party requesting such amendment, except that if the Trustee requests such
amendment, such amendment shall be at the expense of the Depositor, if the
Depositor consents), to the effect that such amendment is permitted under this
paragraph. Any such amendment shall be deemed not to adversely affect in any
material economic respect any Holder if the Trustee receives a Rating Agency
Confirmation from each Rating Agency (and any Opinion of Counsel requested by
the Trustee in connection with any such amendment may rely expressly on such
confirmation as the basis therefor).
(b) This Agreement may also be amended from time to time by
the agreement of the parties hereto (without the consent of the
Certificateholders) and with the written confirmation of the Rating Agencies
that such amendment would not cause the ratings on any Class of Certificates to
be qualified, withdrawn or downgraded; provided, however, that such amendment
may not effect any of the items set forth in clauses (i) through (iv) of the
proviso in paragraph (c) of this Section 13.3. The Trustee may request, at its
option, to receive a Nondisqualification Opinion and an Opinion of Counsel that
any amendment pursuant to this Section 13.3(b) is permitted by this Agreement at
the expense of the party requesting the amendment.
(c) This Agreement may also be amended from time to time by
the parties with the consent of the Holders of not less than 51% of the
Aggregate Certificate Balance of the Certificates then outstanding, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders; provided that no such amendment may (i) directly or indirectly
reduce in any manner the amount of, or delay the timing of the distributions
required to be made on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentages of Aggregate Certificate
Percentage or Certificate Balance, the Holders of which are required to consent
to any such amendment without the consent of all the Holders of each Class of
Certificates affected thereby, (iii) no such amendment shall eliminate or reduce
the Master Servicer's, the Trustee's or the Fiscal Agent's obligation to make an
Advance, including without limitation, in the case of the Master Servicer, the
obligation to advance on a B Note or the RSA Companion Loan, or alter the
Servicing Standard except as may be necessary or desirable to comply with the
REMIC Provisions or (iv) adversely affect the status of any REMIC Pool as a
REMIC for federal income tax purposes (as evidenced by a Nondisqualification
Opinion) or the Class N Grantor Trust as a grantor trust without the consent of
100% of the Certificateholders (including the Class R-I, Class R-II and Class
R-III Certificateholders); provided that no such amendment may modify Section
8.18 of this Agreement without Rating Agency Confirmation. The Trustee may
request, at its option, to receive a Nondisqualification Opinion and an Opinion
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of Counsel that any amendment pursuant to this Section 13.3(c) is permitted by
this Agreement at the expense of the party requesting the amendment.
(d) The costs and expenses associated with any such
amendment shall be borne by the Depositor in the case the Trustee is the party
requesting such amendment or if pursuant to clauses (i), (ii) and (iii) of
Section 13.3(a). In all other cases, the costs and expenses shall be borne by
the party requesting the amendment.
(e) Promptly after the execution of any such amendment, the
Trustee shall furnish written notification of the substance of such amendment to
each Holder, the Depositor and to the Rating Agencies.
(f) It shall not be necessary for the consent of Holders
under this Section 13.3 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Holders shall be in the affirmative
and in writing and shall be subject to such reasonable regulations as the
Trustee may prescribe.
(g) Notwithstanding anything to the contrary contained in
this Section 13.3, the parties hereto agree that this Agreement may not be
amended in any manner that is reasonably likely to have an adverse effect on any
Primary Servicer without first obtaining the written consent of such Primary
Servicer.
(h) Notwithstanding the fact that the provisions in Section
13.3(c) would otherwise apply, with respect to any amendment that significantly
modifies the permitted activities of the Trust, the Trustee, any Primary
Servicer, the Master Servicer or the Special Servicer, any Certificate
beneficially owned by a Seller or any of its Affiliates shall be deemed not to
be outstanding (and shall not be considered when determining the percentage of
Certificateholders consenting or when calculating the total number of
Certificates entitled to consent) for purposes of determining if the requisite
consents of Certificateholders under this Section 13.3 have been obtained.
(i) Notwithstanding anything to the contrary contained in
this Section 13.3, the parties hereto agree that this Agreement may be amended
pursuant to Section 8.26(d) herein without any notice to or consent of any of
the Certificateholders, Opinions of Counsel, Officer's Certificates or Rating
Agency Confirmation.
SECTION 13.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED
IN NEW YORK.
SECTION 13.5 NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given when
received by (A) in the case of the Depositor, Xxxxxx Xxxxxxx Capital I Inc.,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy
to: General Counsel; (B) in the case of the Trustee and the Fiscal Agent at the
Corporate Trust Office; (C) in the case of the Master Servicer, Xxxxx
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Fargo Bank, National Association, 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Commercial Mortgage Servicing, with a copy to
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; (D) in the case of
Principal, Principal Global Investors, LLC, 000 Xxxxx Xxxxxx, Xxx Xxxxxx Xxxx
00000, Attention: Xxxxxxx Xxxxxx, with a copy to Xxxxx Xxxxxxxx, Esq.; (E) in
the case of BSCMI, Bear Xxxxxxx Commercial Mortgage Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department, with copies to the attention of Xxxxxx
X. Xxxxxxxxx, Xx., Managing Director, Legal Department; (F) in the case of MSMC,
Xxxxxx Xxxxxxx Mortgage Capital Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, with a copy to: General Counsel; (G) in the case of
the Special Servicer, ARCap Servicing, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxx, (H) in the case of the initial
Operating Adviser, ARCap CMBS Fund REIT, Inc., 0000 X. XxxXxxxxx Xxxx., Xxxxx
000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxx; and (I) in the case of
the Paying Agent, Xxxxx Fargo Bank Minnesota, National Association, 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Services
(CMBS) Xxxxxx Xxxxxxx Capital I Inc., Series 2003-TOP11, or as to each party
such other address as may hereafter be furnished by such party to the other
parties in writing. Any notice required or permitted to be mailed to a Holder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice.
SECTION 13.6 SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 13.7 INDULGENCES; NO WAIVERS. Neither the failure nor
any delay on the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
SECTION 13.8 HEADINGS NOT TO AFFECT INTERPRETATION. The
headings contained in this Agreement are for convenience of reference only, and
shall not be used in the interpretation hereof.
SECTION 13.9 BENEFITS OF AGREEMENT. Nothing in this Agreement
or in the Certificates, express or implied, shall give to any Person, other than
the parties to this Agreement (including any Primary Servicer to the extent
applicable to such Primary Servicer) and their successors hereunder and the
Holders of the Certificates, any benefit or any legal or equitable right, power,
remedy or claim under this Agreement; provided, however, that (i) the Mortgagors
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set forth on Schedule VIII hereto are intended third-party beneficiaries of the
fifth and sixth paragraph of Section 2.3(a), (ii) the holder of the RSA
Companion Loan and of each B Note, if any, is an intended third-party
beneficiary in respect of the rights afforded it hereunder and (iii) the LB-UBS
2003-C5 Master Servicer and the LB-UBS 2003-C5 Special Servicer are intended
third-party beneficiaries of Section 5.2(a)(ii)(B).
SECTION 13.10 SPECIAL NOTICES TO THE RATING AGENCIES.
(a) The Trustee shall give prompt notice to the Rating
Agencies, Special Servicer and the Operating Adviser of the occurrence of any of
the following events of which it has notice:
(i) any amendment to this Agreement pursuant to
Section 13.3 hereof;
(ii) the Interim Certification and the Final
Certification required pursuant to Section 2.2 hereof;
(iii) notice of the repurchase of any Mortgage Loan or
REO Mortgage Loan pursuant to Section 2.3(a) hereof;
(iv) any resignation of the Master Servicer, Special
Servicer, the Paying Agent, the Operating Adviser or the Trustee pursuant to
this Agreement;
(v) the appointment of any successor to the Master
Servicer, the Fiscal Agent, the Trustee, the Paying Agent, the Operating Adviser
or the Special Servicer pursuant to Section 7.7, 7.14 or 9.37 hereof;
(vi) waiver of a due-on-sale clause as provided in
Section 8.7;
(vii) waiver of a prohibition on subordinate liens on
the Mortgaged Properties;
(viii) the making of a final payment pursuant to
Section 10.3 hereof;
(ix) a Servicing Transfer Event; and
(x) an Event of Default.
(b) All notices to the Rating Agencies shall be in writing
and sent by first class mail, telecopy or overnight courier, as follows:
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If to S&P, to:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Commercial Mortgage Surveillance Manager
If to Moody's, to:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Structured Finance Commercial Real Estate
Monitoring
or at such address as shall be provided in writing to the Depositor by such
Rating Agency.
(c) The Trustee, or in the case of clauses (i) and (ii),
the successor trustee shall give prompt notice to the Rating Agencies of the
occurrence of any of the following events:
(i) the resignation or removal of the Trustee
pursuant to Section 7.6; or
(ii) the appointment of a successor trustee pursuant
to Section 7.7; or
(iii) the appointment of a successor Operating Adviser
pursuant to Section 9.37.
(d) The Master Servicer shall deliver to the Rating
Agencies and the Depositor any other information as reasonably requested by the
Rating Agencies and the Depositor, and shall deliver to the Primary Servicer and
the Special Servicer each of the reports required to be delivered by the Master
Servicer to the Primary Servicer and the Special Servicer pursuant to the terms
of this Agreement. The Trustee, the Paying Agent and the Special Servicer shall
deliver to the Rating Agencies and the Depositor any information as reasonably
requested by the Rating Agencies and Depositor, as the case may be.
(e) Any notice or other document required to be delivered
or mailed by the Depositor, Master Servicer, Paying Agent or Trustee shall be
given by such parties, respectively, on a best efforts basis and only as a
matter of courtesy and accommodation to the Rating Agencies, unless otherwise
specifically required herein, and such parties, respectively, shall have no
liability for failure to deliver any such notice or document to the Rating
Agencies.
SECTION 13.11 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
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SECTION 13.12 INTENTION OF PARTIES. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans and related
rights and property to the Trustee, for the benefit of the Certificateholders,
by the Depositor as provided in Section 2.1 be, and be construed as, an absolute
sale of the Mortgage Loans and related property. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the Mortgage
Loans and related property by the Depositor to the Trustee to secure a debt or
other obligation of the Depositor. However, in the event that, notwithstanding
the intent of the parties, the Mortgage Loans or any related property is held to
be the property of the Depositor, or if for any other reason this Agreement is
held or deemed to create a security interest in the Mortgage Loans or any
related property, then this Agreement shall be deemed to be a security
agreement; and the conveyance provided for in Section 2.1 shall be deemed to be
a grant by the Depositor to the Trustee, for the benefit of the
Certificateholders, of a security interest in all of the Depositor's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) the property described in clauses (1)-(4) below
(regardless of whether subject to the UCC or how classified thereunder) and all
accounts, general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to any of
the property described in clauses (1)-(4) below: (1) the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage Notes,
Mortgages, security agreements, and title, hazard and other insurance policies,
including all Qualifying Substitute Mortgage Loans, all distributions with
respect thereto payable on and after the Cut-Off Date, and the Mortgage Files;
(2) the Distribution Account, all REO Accounts, the Certificate Account, the
Reserve Account and the Interest Reserve Account, including all property therein
and all income from the investment of funds therein (including any accrued
discount realized on liquidation of any investment purchased at a discount); (3)
the REMIC I Regular Interests and the REMIC II Regular Interests; and (4) the
Mortgage Loan Purchase Agreements that are permitted to be assigned to the
Trustee pursuant to Section 14 thereof;
(ii) all accounts, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property, and other
rights arising from or by virtue of the disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or claims against
other Persons with respect to, all or any part of the collateral described in
clause (i) above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
All cash and non-cash Proceeds (as defined in the Uniform
Commercial Code) of the collateral described in clauses (i) and (ii) above.
The possession by the Trustee of the Mortgage Notes, the
Mortgages and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest pursuant to the Uniform Commercial
Code (including, without limitation, Sections 8-301 and 9-315 thereof) as in
force in the relevant jurisdiction.
Notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed to be notifications to, or
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acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents of, or persons holding for, the Trustee, as applicable, for
the purpose of perfecting such security interest under applicable law.
The Depositor and, at the Depositor's direction, the Master
Servicer and the Trustee, shall, to the extent consistent with this Agreement,
take such reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the property described
above, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement. The Master Servicer shall file, at the
expense of the Trust as an Additional Trust Expense all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect the Trustee's
security interest in such property, including without limitation (i)
continuation statements, and (ii) such other statements as may be occasioned by
any transfer of any interest of the Master Servicer or the Depositor in such
property. In connection herewith, the Trustee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction.
SECTION 13.13 RECORDATION OF AGREEMENT. This Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere. Such recordation, if any,
shall be effected by the Master Servicer at the expense of the Trust as an
Additional Trust Expense, but only upon direction of the Depositor accompanied
by an Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders of the Trust.
SECTION 13.14 RATING AGENCY MONITORING FEES. The parties
hereto acknowledge that on the Closing Date the Sellers will pay the ongoing
monitoring fees of the Rating Agencies relating to the rating of the
Certificates that no monitoring fees are payable subsequent to the Closing Date
in respect of the rating of the Certificates. The Master Servicer shall not be
required to pay any such fees or any fees charged for any Rating Agency
Confirmation (except any confirmation required under Section 8.22, Section 8.23
or in connection with a termination and replacement of the Master Servicer
following an Event of Default of the Master Servicer).
SECTION 13.15 ACKNOWLEDGEMENT BY PRIMARY SERVICER. The Primary
Servicer agrees, to the extent applicable to such Primary Servicer and the
Mortgage Loans serviced by such Primary Servicer, to be bound by the terms of
Sections 5.1(g), 8.3, 8.4, 8.7, 8.10, 8.18, 8.25(d) and 8.26 of this Agreement.
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IN WITNESS WHEREOF, the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Paying Agent, the Certificate Registrar, the
Authenticating Agent and the Fiscal Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor
By:
----------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By:
----------------------------------------
Name:
Title:
ARCAP SERVICING, INC., as Special Servicer
By:
---------------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------------
Name:
Title:
ABN AMRO BANK N.V., as Fiscal Agent
By:
---------------------------------------
Name:
Title:
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By:
---------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Paying Agent and
Certificate Registrar
By:
---------------------------------------
Name:
Title:
PRINCIPAL GLOBAL INVESTORS, LLC,
acting solely in its capacity as Primary
Servicer with respect to the sections
referred to in Section 13.15 of the
Agreement
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
-277-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of August 2003, before me, a notary public in
and for said State, personally appeared , personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of Xxxxxx Xxxxxxx
Capital I Inc., and acknowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-----------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On this day of August 2003, before me, a notary public in
and for said State, personally appeared , personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President of , and
acknowledged to me that such corporation executed the within instrument pursuant
to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
-------------------------------------
Notary Public
-2-
STATE OF )
) ss.:
COUNTY OF )
On the day of August 2003, before me, a notary public
in and for said State, personally appeared known to me to be
a of , one of the entities that executed the within instrument,
and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
----------------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this day of August 2003, before me, a notary public in
and for said State, personally appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of , and
acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this day of August 2003, before me, a notary public in
and for said State, personally appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of ,
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this day of August 2003, before me, a notary public in
and for said State, personally appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of
and acknowledged to me that such nationally chartered bank executed the within
instrument pursuant to its by-laws or a resolution of its Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
---------------------------------------
Notary Public
-0-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this day of August 2003, before me, a notary public in
and for said State, personally appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person who
executed the within instrument as Vice President on behalf of
and acknowledged to me that such nationally chartered bank
executed the within instrument pursuant to its by-laws or a resolution of its
Board of Directors.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed
my official seal the day and year in this certificate first above written.
